Bancroft-Whitney  Co. 

Harry  M.  Wier  &  Co. 

204  Ncrlh  Broadway 

LOS  AtJCELES 


THE  LIBRARY 

OF 

i       THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


.wa^S).So^^'"^^: 


A 

TREATISE 


ON 


FEDERAL  CRIMINAL  LAW 
PROCEDURE 


WITH 


FORMS  OF  INDICTMENT. 


BY 

WILLIAM  H.  ATWELL, 

U.  S.  Attorney,  Dallas,  Texas. 

Southwestern  University,  1889. 
University  of  Texas,  1891, 


CHICAGO  : 

T.  H.  FLOOD  &  CO. 

1911. 


Copyright  1911 
William  H.  Atwell 


PREFACE 


The  many  years  I  have  served  as  United  States  Attorney  have 
convinced  me  that  the  majority  of  the  bar  will  welcome  a  sort  of 
compendium  of  Federal  Law  and  Procedure  and  indictment 
forms,  that  may  be  of  instant  assistance  to  them,  when  called 
into  a  criminal  case  in  the  Federal  Court. 

No  especial  claim  of  originality  is  made  for  the  pages  that 
follow.  Reference  books,  annotations,  dictionaries,  encyclope- 
dffis,  and  reports  of  the  Courts  have  been  frequently  and  stu- 
diously consulted.  A  great  portion  of  the  work,  however,  has 
been  taken  from  my  own  annotations,  made  during  my  service 
as  an  official. 

In  the  preparation  of  the  volume,  I  have  been  conscientiously 
aided  by  my  clerk  and  private  secretary,  Mr.  J.  A.  Lantz. 

The  book  is  offered  with  the  prayer  that  the  labor  of  some 
fellow  attorney  may  be  somewhat  lightened. 

Yours  very  earnestly, 

WILLIAM  H.  ATWELL. 

August  1,  1910. 


TABLE  OF  CONTENTS 


CHAPTER  I. 

THE    UNITED    STATES    CONSTITUTION. 

§  1.  Supreme  Law  of  the  Land. 

2.  Articles  V.,  VII.,  III.,  I.,  of  the  Constitution. 

3.  Source  of  Federal  Law. 

4.  Republican  Guaranties. 

5.  Infamous  Crimes. 

6.  Jeopardy. 

7.  Witness  or  Discovery  against  Self,  and  Immunity. 

8.  Article  VI.  of  the  Constitution  with  Reference  to  Trial  Juryj  Copy 

of  Indictment,   and   Confronting  by  Witnesses. 

9.  Federal  Courts  Controlled  by  Federal  Statutes  only. 

CHAPTER  II. 

GENERAL  PROVISIONS  APPLICABLE  TO  THE  PRACTICE. 

§  10.  United  States  Trial  Courts. 

11.  United  States  Commissioners. 

12.  Prosecution  Begun  by  Indictment. 

13.  Grand  Jury;  Indictment,  Remission  of  Same;  Copy  of  Indictment; 

List  of  Witnesses. 

14.  Preliminary  Proceedings  of  Prosecution,  Removal,  and  Extent  of 

Inquiry  by  Court  Into  Indictment. 

15.  Bail  Bond,  Recognizance;  Action  Thereon. 

16.  Challenges  to  Jurors;  Impeachment  of  Verdict;  Loss  of  Juror. 

17.  Return,  Endorsements  on,  and  Forms  of  Indictment. 

18.  Consolidation  of  Indictments;   Joinder  of  Defendants. 

19.  Question  of  Duplicity  in  Indictment,  and  When  to  Raise  It. 

20.  Confessions,  Full;  Nature  of,  Voluntary,  Etc. 

21.  Admissibility  of  Documentary  Evidence  Which  Has  Been  Seeured 

Illegally. 

5 


g  TABLE  OF  CONTENTS 

22.  Comments,  Improper  Argument,  of  District  Attorney  or  Defense; 

Failure  of  Defendant  to  Furnish  Character  Testimony;  Cannot 
Compel  Defendant  to  Give  Testimony  Against  Himself;  Comment 
on  Failure  of  Defendant  to  Testify  in  His  Own  Behalf. 

23.  Prosecuting  Officer  in  Grand  Jury  Room ;  Limits  of  His  Expression. 

24.  Jury;    Right  of   Trial;    Waiver   Thereof;    Necessity   for  Requisite 

Number;   Illegal  to  Try  -with  Eleven. 

25.  Care  of  Jury ;  Moral  Weight  of  Verdict ;  Legal  Weight  of  Verdict ; 

Newspapers  with  Jury;    Attempts  to   Influence   Verdict. 

26.  Evidence  of  Good  Character  of  Defendant;    Charge  on  Presump- 

tion Thereof. 

27.  Instructions   of    the    Court,    Form,   Whether   in   Writing   or   Oral; 

Special  Instructions. 

28.  Opinion  of  Court;  How  Guarded. 

29.  Court    Cannot    Comment   on    Lack    of    Evidence;    Presumption    of 

Good  Character. 

30.  Further  Limitation  on  Comment  of  Court. 

31.  Verdict  as  to  Part. 

32.  Sentence;   Correction  Thereof;    Time  of  Sentence;    Authority  for. 

33.  No  Authority  to  Suspend  Sentence. 

34.  Correction  of  Sentence;  Control  of  Court  Over  Sentence  After  End 

of  Term;  New  Trial,  Motion  for.  When  to  Be  Made;  May  Be 
Made  in  Court  of  Appeals;  Null  and  Void  Criminal  Judgment, 
Whether  May  Be  Corrected,  and  How. 

35.  Remission  of  Penalty  on  Forfeited  Recognizance. 

36.  Bail  After  Affirmance  of  Judgment. 

37.  Severance,  Separate  Trials;  Discretion  of  Court. 

38.  Habeas  Corpus,  Conclusions  of  Law  Therein,  Instead  of  Statement 

of  Facts. 

39.  Immunity  Under  Commerce  Act,   by  Reason  of   Testimony. 

40.  Improper  Person  in  Grand  Jury  Room. 

41.  Private  Prosecutors  Unknown  in  Federal  Courts. 

42.  Proof  of  Witness'  Former  Conviction. 

CHAPTER  III. 

POSTAL  CRIMES. 

Note. — The  first  numbers  indicate  the  old  Sections;  then  follows  a  dash, 
and  after  the  dash  the  numbers  indicate  the  Sections  in  the  new  Code. 

§  43.  Jurisdiction  of  State  and  Federal  Courts. 

44.  Section  3833  as  to  Jurisdiction. 

45.  Breaking  Into  and  Entering  Post-OflBce:    5478 — 192. 

46.  Unlawfully  Entering  Postal-Car,  or  Interfering  with  Postal-Clerk: 

New  Code,  193. 


TABLE   OF  CONTENTS  7 

47.  Assaulting   Mail   Carrier   with   Intent   to   Eob;   Eobbing  Mail   and 

Injuring  Letter-Boxes  or  Mail  Matter,  and  Assaulting  Carrier: 
3869,  5466,  5472,  and  5473—197  and  198. 

48.  Obstructing  the  Mails:   3995—201. 

49.  Ferryman  Delaying  the  Mail:   3995—201. 

50.  Postmaster  or  Other  Employee  Detaining  or  Destroying  Newspa- 

pers: 5471—196. 

51.  Postmaster   or   Employee   of   Service   Detaining   or   Destroying   or 

Embezzling  Letter:   3890,  3891,  and  5467—195. 

52.  Stealing,   Secreting,   Embezzling,   Etc.,   Mail  Matter   or   Contents: 

3892,  5469,  and  5470—194. 

53.  Obscene  Matter,  Etc.,  Non-Mailable,  and  Penalties:  3893 — 211. 

54.  Libelous  and  Indecent  Wrappers  and  Envelopes,  Etc.: 

55.  Use  of  Mails  for  Fraudulent  Purposes:   5480,  I  Sup.,  694—215,. 

56.  Civil  Statute  Against  Fraudulent  Use  of  Mail:   3929. 

57.  Fraudulently  Assuming  Fictitious  Address  or  Name:  5480;  I  Sup., 

695—216. 

58.  Lottery,  Gift   Enterprises,   Circulars,   Etc.,   not   Mailable:    3894;    I 

Sup.,  803;  II  Sup.,  435—215. 

59.  What  Is  a  Lottery  or  Chance. 

60.  Land  Schemes. 

61.  Issuing  of  Stock. 

62.  Other  Cases  Under  the  Lottery  Statute. 

63.  Postmasters  Not  to  Be  Lottery  Agents:   3851 — 214. 

64.  False   Eeturns   to   Increase   Compensation:    3855;    I   Sup.,   417;    I 

Sup.,  419;  Sec.  2,  p.  602,  27  St.  L.— 206. 

65.  Civil  Eemedy. 

66.  Collection  of  Unlawful  Postage:  3899—207. 

67.  Unlawful  Pledging  or  Sale  of  Stamps:  3920;  20  St.  L.,  149—208, 

68.  Failure  to   Account   for  Postage  and   to   Cancel  Stamps:    I  Sup., 

249—209 

69.  Issuing  Money-Orders  Without  Payment:  4030 — 210. 

70.  Counterfeiting  Money-Orders,   Etc.,   and  Fraudulently  Issuing  the 

Same  Without  Having  Eeceived  the  Money  Therefor:  5463;  I 
Sup.,  518;  I  Sup.,  593—218. 

71.  Counterfeiting  Postage  Stamps,  Domestic  or  Foreign:   5464,  5465 

—219,  220. 

72.  Misappropriation  of  Postal  Funds  or  Property  by  Use  or  Failure 

to  Deposit:  4046  and  4053—225. 

73.  Eural  Carriers  Eesponsible  Under  the  Foregoing  Section. 

74.  Stealing  Post-Office  Property:   5475—190. 

75.  Other  Minor  Offenses  of  the   New   Code:    3829—179;   3981—180; 

3982—181;  3983—182;  3984—183;  3985—184;  3986—185;  3987 
—186;  3967—187;  3979—188;  5474—199;  3977—200;  3988— 
204;  4016—203;  3922,  3923,  3924,  and  3925—205;  3878,  I  Sup., 


3  TABLE  OF  CONTENTS 

247,  II  Sup.,  507—217;  3887  and  I  Sup.,  578—221;  3947  and  I 
Sup.,  45—222;  I  Sup.,  593  and  33  St.  L.,  823—223;  False 
Claims,  224;  Employees  in  Contracts,  412 — 226;  I  Sup.,  135, 
and  467—227;  II  Sup.,  778,  and  30  St.  L.,  442—228;  4013—229. 
76.  All  Persons  Employed  in  Service,  Whether  Taken  Oath  or  not, 
Employees:   230  and  231. 

CHAPTER  IV. 

COUNTEEFEITING  AND   OTHEE  OFFENSES  AGAINST   THE   CUR 
RENCY,  COINAGE,  AND  OTHER  SECURITIES. 

§  77.  Definition  of  "Obligation  and  Other  Securities":   5413—147. 

78.  Cases  Further  Defining  Government  Obligation:  5430 — 150. 

79.  Obligation  of  the  United  States,  and  Forfeiture  Thereof. 

80.  Forging   or   Counterfeiting   United   States   Securities:    5414 — 148; 

5415—149;  5431—151  and  162. 

81.  Forging  and  Counterfeiting  United  States  Securities  and  National 

Bank  Notes:    5414—148,   149,   and  151. 

82.  Confederate  Money  Under  This  Section,  and  "Likeness  and  Simil- 

itude." 

83.  Other    Securities    Under    This    Counterfeiting    Section,    Including 

State  Bank  Notes. 

84.  Allegation  of  Knowledge  in  Counterfeiting. 

85.  Description  of  ' '  Obligation  "  or  "  Counterfeit. ' ' 

86.  Circulating  Bills  of  Expired  Corporation:   5437 — 174. 

87.  Mutilating  or  Defacing  National  Bank  Note:   5189 — 176. 

88.  Imitating  National  Bank  Notes,  Printed  Advertisements  Thereon: 

5188—175. 

89.  Imitating    United    States    Securities,    or    Printing    Advertisements 

Thereon;  Business  Cards:  3708 — 177. 

90.  Notes  Less  Than  One  Dollar  Not  to  Be  Issued:  3583—178. 

91.  Counterfeiting   Gold   or   Silver   Coins   or   Bars:    5457   and   I   Sup., 
*.         128—163. 

92.  ' '  Resemblance  or  Similitude ' '  Under  Above  Section. 

93.  Counterfeiting  Minor  Coins:    5458 — 164. 

94.  Making  or  Uttering  Coins  in  Resemblance  of  Money:  5461 — 167. 

95.  Making  or  Issuing  Devices  of  Minor  Coins:  5462 — 168. 

96.  Other  Statutes  Relating  to  Coinage,  Mutilation,  Debasement,  Coun- 

terfeiting of  Dies;  Foreign  Coins:  5459—165;  150 — 166;  I  Sup., 
889—169;   I  Sup.,  890—170;  I  Sup.,  890,  32  St.  L.,  1223— 17L 

97.  Counterfeit  Obligations,  Etc.,  to  Be  Forfeited:  I  Sup.,  890—172. 

98.  Search  Warrant  in  Aid  of  Above  Statutes:  I  Sup.,  890—173. 


TABLE  OF  CONTENTS  9 

CHAPTER  V. 

OFFENSES   AGAINST   PUBLIC   JUSTICE. 

\  99.  Perjury:   5392—125. 

100.  Form  of  Oath  Immaterial. 

101.  Competent  Tribunal,  Officer,  Etc. 

102.  Illustrations  of  Successfully  Laid  Perjury. 

103.  "Wilfulness  and  Materiality. 

104.  Sufficiency  of  Indictment:  5396. 

105.  Proof  of. 

106.  Subornation  of  Perjury:   5393—126. 

107.  Stealing   or   Altering   Process,   Procuring   False   Bail,   Etc.:    5394 

—127. 

108.  Obstructing  Process  or  Assaulting  an  Officer:   5398—140. 

109.  Destroying  or  Stealing,  Etc.,  Public  Eecords:   5403 — 128. 

110.  Destroying  Eecords  by  Officer  in  Charge:   5408 — 129. 

111.  Forging  Signature  of  Judge,  Etc.:   5419—130. 

112.  Intimidation  or  Corruption  of  Witness,  or  Grand  or  Petit  Juror  or 

Officer:   5399  and  5404—135. 

113.  Conspiring  to  Intimidate  Party,  Witness,  or  Juror:   5406 — 136. 

114.  Attempt  to  Influence  Juror:   5405 — 137. 

115.  Allowing  Prisoner  to  Escape:   5409 — 138. 

116.  Rescuing,    Etc.,    Prisoner;    Concealing,    Etc.,    Prisoner    for    Whom 

Warrant  Has  Issued. 

117.  Eescuing  at  Execution;   Eescue  of  Prisoner  and  Eescue  of  Body 

of  Executed  Offender:  5400,  5401,  and  5402—142,  143,  and  144, 

118.  Extortion  by  Internal  Eevenue  Informers:   5484 — 145. 

119.  Misprison  of  Felony:  5390—146. 

120.  Bribery. 

121.  Bribery  of  a  Judge  or  Judicial  Officer:  5449 — 131. 

122.  Judge  or  Judicial  Officer  Accepting  Bribe:   5499 — 132. 

123.  Juror,   Eeferee,   Master,    United   States   Commissioner,    or   Judicial 

Officer,  Etc.,  Accepting  Bribe:   New  Code,  133. 

124.  Witness  Accepting  Bribe:   New  Code,  134. 

125.  Members  of  Congress  Accepting  Bribe,  Etc. 


CHAPTER  VI. 

OFFENSES  RELATING  TO  OFFICIAL  DUTIES. 

126.  Extortion,  Generally;  Definition,  Etc. 

127.  Extortion  as  a  Federal  Offense:   5481 — 85. 

128.  Eeceipting   for  Larger   Sums   Than   are  Paid:    5483 — 86. 


10  TABLE   OF  CONTENTS 

129.  Species  of  Embezzlement:  5488,  5489,  5490,  5491,  5492,  5493,  5494, 

5495,  5496,  and  5497—87,  88,  89,  90,  91,  92,  93,  94,  95,  96,  97, 
98,  99,  100,  and  101. 

130.  Disbursing    Officers   Unlawfully    Converting,    Etc.,    Public   Money: 

New  Code,  87. 

131.  Failure  of  Treasurer  to  Safely  Keep  Public  Funds:  New  Code,  88. 

132.  Custodians  of  Public  Money  Failing  to  Safelj   Keep:   New  Code, 

89. 

133.  Failure  of  Officer  to  Render  Accounts:  New  Code  90. 

134.  Failure  to  Deposit,  as  Required :   New  Code,  91. 

135.  Provisions   of   the   Five   Preceding   Sections,   How    Applied:    New 

Code,  92. 

136.  Record  Evidence  of  Embezzlement:  New  Code,  93. 

137.  Prima  Facie  Evidence:  New  Code,  94. 

138.  Evidence  of  Conversion:  New  Code,  95. 

139.  Banker,    Etc.,    Receiving    Deposit    From    Disbursing    Officer:    New 

Code,  96. 

140.  Embezzlement  by  Internal  Revenue  Officers,  Etc.:  New  Code,  97. 

141.  Officer  Contracting  Beyond  Specific  Appropriation:   5503 — 98. 

142.  Officer  of  United  States  Court  Failing  to  Deposit  Moneys,  Etc.: 

5504—99. 

143.  Receiving  Loan  or  Deposit  from  Officer  of  Court:  New  Code,  100. 

144.  Failure  to  Make  Returns  or  Reports:    1780 — 101. 

145.  Aiding  in  Trading  in  Obscene  Literature,  Etc.:   1785 — 102. 

146.  Collecting  and  Disbursing  Officers  Forbidden  to  Trade  in  Public 

Funds:   1788  and  1789—103. 

147.  Judges,  Clerks,  Deputies,  Marshals,  and  Attorneys,  and  Their  Dep- 

uties Forbidden  to  Purchase  Witness  Fees,  Etc. :   29  St.  L.,  595 
—104. 

148.  Falsely  Certifying,  Etc.,  as  to  Record  of  Deeds:  New  Code,  105. 

149.  Other  False  Certificates:  New  Code,  106. 

150.  Inspector  of  Steamboats  Receiving  Illegal  Fees:  5482 — 107. 

151.  Pension  Agent  Taking  Fee,  Etc.:   5487 — 108. 

152.  Officer   not   to    Be   Interested   in    Claims    Against    United   States: 

5498—109. 

153.  Member   of   Congress,    Etc.,   Soliciting   or   Accepting   Bribe:    1781 

and  5500  and  5502—110. 

154.  Offering,  Etc.,  Member  of  Congress  Bribe:  5450 — 111. 

155.  Member  of  Congress  Taking  Consideration  for  Procuring  Contracts, 

Offices,  Etc.;  Offering  Member  Consideration,  Etc.:   1781 — 112. 

156.  Member   of   Congress   Taking   Compensation   in   Matters   to   Which 

the  United  States  Is  a  Party:    1782—113. 

157.  Member  of  Congress  Not  to  Be  Interested  in  Contract:  3739 — 114. 

158.  Officer  Making  Contract  with  Member  of  Congress:  3742 — 115. 


TABLE  OF  CONTENTS  11 

159.  Contracts  to  "Which  the  Two  Preceding  Sections  Do  Not  Apply: 

3740—116. 

160.  United  States  Officer  Accepting  Bribe:  5501  and  5502 — 117. 

161.  Political   Contributions  Not   to  Be   Solicited  by   Certain   Officers: 

New  Code,  118. 

162.  Political  Contributions  Not  to  Be  Keceived  in  Public  Offices:  New 

Code,  119. 

163.  Immunity  from  Official  Proscription,  Etc. :  New  Code,  120. 

164.  Giving  Money,  Etc.,  to  Officials  for  Political  Purposes  Prohibited: 

New  Code,  121. 

165.  Penalty  for  Violating  the  Provisions  of  the  Four  Preceding  Sec- 

tions, New  Code,  122. 

166.  All  of  the  Above,  Civil  Service  Act:  I  Sup.,  396. 

167.  Government   Officer,    Etc.,    Giving   Out    Advance   Information    Ke- 

specting  Crop  Eeports:  New  Code,  123. 

168.  Government  Officer,  Etc.,   Knowingly  Compiling  or  Issuing  False 

Statistics  Eespecting  Crops:  New  Code,  124. 

169.  Counterfeiting  Weather  Forecasts;  Interfering  with  Signals,  Etc.: 

33  St.  L.,  864. 

CHAPTER  VII. 

OFFENSES  AGAINST  THE  OPERATIONS  OF  THE  GOVERNMENT. 

§  170.  New  Code  Generally,  Under  This  Head. 

171.  Forgery  of  Letters  Patent:   5416—27. 

172.  Forging  Bond,  Deed,  Public  Record,  Etc.:  5418  and  5479—28. 

173.  Forging  Deeds,  Powers  of  Attorney,  Etc.:   5421 — 29. 

174.  Having  Forged  Papers  in  Possession:   5422 — 30. 

175.  False  Acknowledgements:   New  Code,  31. 

176.  Falsely  Pretending  to  Be  an  United  States  Officer :  5548  and  23  St. 

L.,  11,  and  I  Sup.,  425—32. 

177.  False  Personation  of  Holder  of  Public  Stocks:   5435—33. 

178.  False  Demand  or  Fraudulent  Power  of  Attorney:   5436 — 34. 

179.  Making  or  Presenting  False  Claims:  5438 — 35. 

180.  Embezzling  Arms,  Stores,  Etc.:   5439 — 36. 

181.  Conspiracies  to  Commit  Offenses  Against  the  United  States;    All 

Defendants  Liable  for  Acts  of  One:  5440 — 37. 

182.  Sufficiency  of  Description  of  Conspiracy. 

183.  Venue  and  Indictment. 

184.  Illustrative  Cases. 

185.  Bribery  of  United  States  Officer:   5451—39. 

186.  Unlawfully    Taking    or   Using   Papers   Relating    to    Claims:    New 

Code,  40. 

187.  Persons    Interested   Not    to    Act    as   Agents    of   the    Government: 

1783—41. 


12 


TABLE  OF  CONTENTS 


188.  Enticing  Desertions  from  the  Military  or  Naval  Service:   1553  and 

5455—42. 

189.  Enticing  Away  Workmen:    1668 — 43. 

190.  Injuries  to  Fortifications,  Harbor  Defences,  Etc.:  II  Sup.,  885 — 44. 

191.  Unlawfully  Entering  Upon  Military  Eeservation,  Fort,  Etc.:   New 

Code,  45. 

192.  Bobbery  or  Larceny  of  Personal  Property  of  the  United  States: 

5456 — 46. 

193.  Embezzling,  Stealing,  Etc.,  Public  Property:    I  Sup.,   88—47. 

194.  Eeceivers,  Etc.,  of  Stolen  Public  Property:  I  Sup.,  88 — 48. 

195.  Timber    Depredations    on    Public    Lands:    II.    Sup.,    65,    I.    Sup., 

168—49. 

196.  Timber,    Etc.,    Depredations    on    Indian    and    Other    Reservations: 

5388—50. 

197.  Boxing,  Etc.,  Timber  on  Public  Lands  for  Turpentine:   34  St.  L., 

208—51. 

198.  Setting  Fire  to  Timber  on  Public  Lands:    II  Sup.,   562,  II  Sup., 

1163—52. 

199.  Failing   to    Extinguish    Fires:    New    Code,    53. 

200.  Breaking  Fence  or  Gate  Enclosing  Reservation  Lands,  or  Driving 

or  Permitting  Live  Stock  to  Enter  Upon:  New  Code,  56. 

201.  Injuring  or  Removing  Posts  or  Monuments:   New  Code,  57. 

202.  Interrupting  Service:   2412 — 58. 

203.  Agreement  to  Prevent  Bids  at  Sale  of  Lands:   2373—59. 

204.  Injuries  to  United  States  Telegraph,  Etc.,  Lines:   I  Sup.,  46 — 60. 

205.  Counterfeiting  Weather  Forecasts:   II  Sup.,  233,  and  II  Sup.,  406, 

and  II  Sup.,  459—61. 

206.  Interfering  with  Employees  of  Bureau  of  Animal  Industry:  33  St. 

L.,  1265—62. 

207.  Forgery  of  Certificate  of  Entry:    5417—63. 

208.  Concealment  or  Destruction   of   Invoices,   Etc.:    5443 — 63. 

209.  Resisting  Revenue   Officers;    Rescuing   or   Destroying   Seized   Prop- 

erty, Etc.:   5447—65. 

210.  Falsely  Assuming  to  Be  Revenue  Officer:  5448 — 66. 

211.  Offering  Presents  to  Revenue  Officers:   5452—67. 

212.  Admitting  Merchandise  to  Entry  for  Less  Than  Legal  Duty:  .5444 

—68. 

213.  Securing  Entry  of  Merchandise  by  False  Samples:   5445 — 69. 

214.  False  Certification  by  Consular  Officers:   5442 — 70. 

215.  Taking  Seized  Property   from   Custody  of   Revenue   Officer:    5446 

—71. 

216.  Forging,  Etc.,  Certificate  of  Citizenship:  34  St.  L.,  602—74. 

217.  Engraving,  Etc.,  Plate  for  Printing  or  Photographing,  Etc.,  Certi- 

ficate of  Citizenship:  34  St.  L.,  602—75. 

218.  False  Personification,  Etc.,  in  Procuring  Naturalization:   5424 — 76. 


TABLE  OF  CONTENTS  13 

219.  Using    False    Certificate    of    Citizenship,    or    Denying    Citizenship, 

Etc.:   5425—77. 

220.  Using    False    Certificate,    Etc.,    as    Evidence    of    Right    to    Vote: 

5426—78. 

221.  Falsely  Claiming  Citizenship:   5428—79. 

222.  Taking  False  Oath  in  Naturalization:  5395 — 80. 

223.  Provisions  Applicable  to  All  Courts  of  Naturalization:  5429 — 81. 

224.  Corporations,   Etc.,   Not   to   Contribute   Money   for  Political   Elec- 

tions: 34  St.  L.,  83. 


CHAPTER  VIII. 

OFFENSES   AGAINST   THE   EXISTENCE   OF   THE   GOVERNMENT. 

§  225.  Treason,  Generally. 

226.  The  Statute:  5331—1. 

227.  Punishment:   5332—2. 

228.  Misprision  of  Treason:   5333 — 3. 

229.  Inciting  or  Engaging  in  Rebellion  or  Insurrection:  5334 — 4. 

230.  Criminal  Correspondence  with  Foreign  Governments:   5335 — 5. 

231.  Seditious  Conspiracy:   5336 — 6. 

232.  Recruiting  Soldiers  or  Sailors  to  Serve  Against  the  United  States: 

5337—7. 

233.  Enlistment  to  Serve  Against  the  United  States:   5338 — 8. 

CHAPTER  IX. 
OFFENSES  AGAINST  NEUTRALITY. 

§  234.  Neutrality,  Generally. 

235.  Accepting  Foreign  Commission:   5281 — 9. 

236.  Enlisting  in  Foreign  Commission:   5282 — 10. 

237.  Arming  A^'essel  Against  People  at  Peace  With  the  United  States: 

5283—11. 

238.  Forfeiture  of  Vessel  Without  Conviction. 

239'.     Augmenting  Force  of  Foreign  Vessel  of  War:   5285 — 12. 

240.  Military   Expeditions   Against   People    at   Peace   with   the   United 

States:  5286—13. 

241.  Enforcement  of  Foregoing  Provisions:   5287 — 14. 

242.  Compelling  Foreign  Vessels  to  Depart:   5288 — 15. 

243.  Armed  Vessels  to  Give  Bond  on  Clearance:  5289 — 16. 

244.  Detention  by  Collector  of  Customs:  5290—17. 

245.  Cpngtructipn  of  this  Chapter:  5291 — 18. 


j4  TABLE  OF  CONTENTS 

CHAPTER  X. 

OFFENSES    AGAINST    THE    ELECTIVE    FEANCHISE    AND    CIVIL 
EIGHTS    OF   CITIZENS. 

§  246.     System  of  Government,  Etc.,  Generally. 

247.  Conspiracy    to    Injure,    Etc.,    Citizens    in    the    Exercise    of    Civil 

Eights:   5508—19. 

248.  Eight  to  Labor  Under  Above  Section. 

249.  Other  Illustrations  Under  Above  Section. 

250.  Other  Crimes  Committed  While  Violating  the  Preceding  Section: 

5509. 

251.  Depriving   Persons    of    Civil   Eights   Under    Color    of   State    Lav/: 

5510—20. 

252.  Consipracy  to  Prevent  Persons  from  Holding  Office,  or  Officer  from 

Performing  His  Duty  Under  United  States,  Etc.:   5518—21, 

253.  Unlawful  Presence  of  Troops  at  Election:   5528 — 22. 

254.  Intimidation    of    Voters   by    Officers,    Etc.,    of    Army    and    Navy: 

5529—23. 

255.  Officers  of  Army   or   Navy  Prescribing   Qualifications   of   Voters: 

5530—24. 

256.  Officers,  Etc.,  of  Army  or  Navy  Interfering  with  Officers  of  Elec- 

tion, Etc.:   5531—25. 

257.  Persons    Disqualified    from    Holding    Office;    When    Soldiers    may 

Vote:   5532—26. 


CHAPTER  XI. 

OFFENSES    AGAINST    FOEEIGN    AND   INTER-STATE    COMMERCE. 

§  258.     Dynamite,  Etc.,  Not  to  Be  Carried  on  Vessels  or  Vehicless  Car- 
rying Passengers  for  Hire:   4278  and  5353 — 232. 
2.59.     Interstate  Commerce  Commission  to  Make  Regulations  for   Trans- 
portation of  Explosives:   4279  and  5355 — 233. 

260.  Liquid  Nitroglycerine,  Etc.,  Not  to  Be  Carried  on  Certain  Vessels 

and  Vehicles:   35  St.  L.,  555—234. 

261.  Marking    of    Packages    of    Explosives;    Deceptive    Marking:    New 

Code,  235. 

262.  Death    or    Bodily    Injury    Caused    by    Such    Transportation:    5354 

—236. 

263.  Importation  and  Transportation  of  Lottery  Tickets,  Etc.:  II  Sup., 

435—237. 

264.  Interstate  Shipment  of  Intoxicating  Liquors;  Delivery  to  Be  Made 

Only  to  Bona  Fide  Consignee:   New  Code,  238. 


TABLE  OF  CONTENTS  15 

265.  Common  Carrier,  Etc.,  Not  to  Collect  Purchase  Price  of  Interstate 

Shipment  of  Intoxicating  Liquors:   New  Code,  239. 

266.  Packages   Containing   Intoxicating   Liquors   Shipped   in   Interstate 

Commerce  to  Be  Marked  as  Such:  New  Code,  240. 

267.  Importation   of    Certain   Wild   Animals,   Birds,    and   Reptiles   For- 

bidden:  II  Sup.,   1174—241. 

268.  Transportation  of  Prohibited  Animals:  II  Sup.,  1174 — 242. 

269.  Marking  of  Packages:  II  Sup.,  1174—243. 

270.  Penalty  for  Violation  of  Preceding  Sections:  New  Code,  244. 

271.  Depositing  Obscene  Books,  Etc.,  with  Common  Carrier:   New  Code, 

245. 

CHAPTER  XII. 

THE   SLAVE   TRADE   AND  PEONAGE. 

§  272.  Legislation  Founded  on  Amendments. 

273.  Confining  or  Detaining  Slaves  on  Board  Vessel:  5375 — 246. 

274.  Seizing  Slaves  on  Foreign  Shore:  5376 — 247. 

275.  Bringing  Slaves  Into  the  United  States:  5377 — 248. 

276.  Equipping  Vessels  for  Slave  Trade:   5378—249. 

277.  Transporting  Persons  to  Be  Held  as  Slaves:  5379 — 250. 

278.  Hovering  on  Coast  with  Slaves  on  Board:   5380 — 251. 

279.  Serving  in  Vessels  Engaged  in  Slave  Trade:  5381  and  5382—252. 

280.  Receiving  or  Carrying  Away  Any  Person  to  Be  Sold  or  Held  as  a 

Slave:   5524—253. 

281.  Equipping,  Etc.,  Vessels  for  Slave  Trade:   5551—254. 

282.  Penalty  on  Persons  Building,  Equipping,  Etc.:  5552 — 255. 

283.  Forfeiture  of  Vessel  Transporting  Slaves:   5553—256. 

284.  Receiving  Persons  on  Board  to  Be  Sold  as  Slaves:  5554 — 257. 

285.  Vessel  Found  Hovering  on  Coast:  5555 — 258. 

286.  Forfeiture  of  Interest  in  Vessels  Transporting  Slaves:  5556 — 259. 

287.  Seizure  of  Vessels  Engaged  in  the  Slave  Trade:  5557 — 260. 

288.  Proceeds  of  Condemned  Vessels,  How  Distributed:  5558 — 261. 

289.  Disposal  of  Persona  Found  on  Board  Seized  Vessel:  5559 — 262. 

290.  Apprehension  of  Officers  and  Crew:  5560—263. 

291.  Removal  of  Persons  Delivered  from  Seized  Vessel:  5571 — 264. 

292.  To  What  Port  Captured  Vessels  Sent:  5563—265. 

293.  When  Owners  of  Foreign  Vessels  Shall  Give  Bond:  5564—266. 

294.  Instructions  to  Commanders  of  Armed  Vessels:   5567 — 267. 

295.  Kidnaping:   5525—268. 

296.  Holding  or  Returning  to  Peonage:  5526 — 269. 

297.  Obstructing  Execution  of  Above:   5527 — 270. 

298.  Bringing  Kidnaped  Persons  Into  the  United  States:    I  Sup.,   46 

—271. 


IQ  TABLE   OF  CONTENTS 

CHAPTER  XIII. 

OFFENSES   WITHIN  THE   ADMIRALTY,   MARITIME,   AND    TERRI- 
TORIAL JURISDDICTION  OF  THE  UNITED  STATES. 

Note. — The  first  numbers  indicate  the  old  Sections;  then  follows  a  dash, 
and  after  the  dash  the  numbers  indicate  the  Sections  in  the  new  Code. 

§  299.  Generally,  Federal  Territory. 

300.  Places  Defined:  New  Code,  272. 

301.  Murder:   5339—273. 

302.  Murder  Verdict:   29  Stat.  L.,  487. 

303.  Manslaughter:   5341—274. 

304.  Punishment  for  Murder  and  Manslaughter:   5339  and  5343 — 275. 

305.  Assault    with    Intent    to    Commit    Murder,    Rape,    Robbery,    Etc.: 

5346—276. 

306.  Attempt  to  Commit  Murder  or  Manslaughter:   5342 — 277. 

307.  Rape:   5343—278. 

308.  Having  Carnal  Knowledge  of  Female  Under  Sixteen:    New  Code, 

279. 

309.  Seduction  of  Female  Passenger  on  Vessel:   5349 — 280. 

310.  Payment  of  Fine  to  Female  Seduced;   Evidence  Required;  Limita- 

tions on  Indictment:  5350  and  5351 — 281. 

311.  Punishment  for  Loss  of  Life  by  Misconduct  of  OflScers,  Owners, 

Charterers,  Etc.,  of  Vessels:   5344 — 282. 

312.  Maiming:   5348—283. 

313.  Robbery:   5370—284. 

314.  Arson  of  Dwelling  House:  5385 — 285. 

315.  Arson  of  Arsenal,  Etc.;  Other  Buildings,  Etc.:  5386 — 286. 

316.  Larceny:  5356—287. 

317.  Receiving,  Etc.,  Stolen  Goods:  5357—288. 

318.  Laws    of    State    Adopted    for    Punishing    Wrongful    Acts,    Etc.: 

5391—289. 

CHAPTER  XIV. 

PIRACY  AND  OTHER  OFFENSES  UPON  THE  HIGH  SEAS. 

§  319.  Generally. 

320.  Piracy  in  the  Code:   5368—290. 

321.  Maltreatment  of  Crew  by  Officers  of  Vessel:  5347 — 291. 
.322.  Extradition  for  this  Oflfense:  New  Code,  321. 

323.  Inciting  Revolt  or  Mutiny  on  Ship-Board:   5359 — 292. 

324.  Revolt  and  Mutiny  on  Ship-Board:   5360—293. 

325.  Seaman  Laying  Violent  Hands  on  His  Commander:   5369—294. 

326.  Abandonment  o^  Mariners  in  Foreign  Ports:  5363 — 295. 


TABLE  OF  CONTENTS  17 

327.  Conspiracy  to  Cast  Away  Vessel:   5364 — 296. 

328.  Plundering  Vessel,  Etc.,  in  Distress:   5358 — 297. 

329.  Attacking  Vessel  with  Intent  to  Plunder:   5361—298. 

330.  Breaking  and  Entering  Vessel,  Etc.:   5362—299. 

331.  Owner  Destroying  Vessel  at  Sea:   5365 — 300. 

332.  Other  Persons  Destroying  or  Attempting  to  Destroy  Vessel  at  Sea: 

5366  and  5367—301. 

333.  Robbery  on  Shore  by  Crew  of  Piratical  Vessel:  5371—302. 

334.  Arming  Vessel  to  Cruise  Against  the  Citizens  of  the  United  States: 

5284—303. 

335.  Piracy  Under  Color  of  a  Foreign  Commission:   5373 — 304. 

336.  Piracy  by  Subjects  or  Citizens  of  a  Foreign  State:  5374 — 305. 

337.  Running  Away  With  or  Yielding  Up  Vessel  of  Cargo:   5383—306. 

338.  Confederating,  Etc.,  with  Pirates:  5384—307. 

339.  Sale  of  Arms  and  Intoxicants  Forbidden  in  Pacific  Islands:    32 

St.  L.,  33—308. 

340.  Offenses  Under  Preceding  Section  Deemed  on  High  Seas:  Act  Feb- 

ruary 14,   1902—309. 

341.  "Vessels  of  the  United  States"  Defined:  New  Code,  310, 

CHAPTER  XV. 

CERTAIN  OFFENSES  IN  THE  TERRITORIES. 

§  342.     No    Conflict    Between    Territory    Code    and    United    States    Code: 
New  Code,  311. 

343.  Circulation  of  Obscene  Literature,  Promoting  Abortion,  How  Pun- 

ished:   5389—312. 

344.  Polygamy:   5352—313. 

345.  Unlawful  Cohabitation:   New  Code,  314. 

346.  Joinder  of  Counts:   New  Code,  315. 

347.  Decisions  on  Foregoing  Statutes. 

348.  Adultery:   I  Sup.,  568—316. 

349.  Incest:    I   Sup.,   568—317. 

350.  Fornication:    I  Sup.,  568—318. 

351.  Certificates  of  Marriage;   Penalty  for  Failure  to  Record. 

352.  Prize  Fights,  Bull  Fights,  Etc.:   II  Sup.,  446—320. 

353.  "Pugilistic  Encounter"  Defined:  II  Sup.,  446—321. 

354.  Train  Robberies  in  Territories,  Etc.:   New  Code,  322. 

CHAPTER  XVI 

INTERNAL  REVENUE. 

§  355.     Raising  of  Revenue,  Generally, 

356,     Trade  or  Business  Not  to  Be  Carried  on  Until  Revenue  Paid:  3232. 


18  TABLE   OF  CONTENTS 

357.  Partnerships:  3234. 

358.  Must  Exhibit  Stamps:    3239. 

359.  Eectifiers,    Liquor    Dealers,    Etc.,    Carrying    on    Business    "Without 

Paying  Special  Tax,  Etc.:  3242—16. 

360.  C.  O.  D.  Decisions  Under  Above. 

361.  Fact  Cases. 

362.  Proof  of  License. 

363.  Distiller  Defrauding  or  Attempting  to  Defraud  United  States  of 

Tax  on  Spirits::    3257. 

364.  Breaking  Locks,  Gaining  Access,  Etc.:   3268. 

365.  Signs  to  Be  Put  Up  By  Distillers  and  Dealers  and  Other  Eegula- 

tions:    3279,  3280,  3281,  3296. 

366.  Books  to  Be  Kept  by  Eectifiers  and  Wholesale  Dealers;  Penalty: 

3318. 

367.  Stamps  and  Brands  to  be  Effaced  from  Empty  Cask:  3324. 

368.  Ee-use  of  Bottles,  Etc.,  Without  Eemoving  Stamps:    29  Stat.  L., 

627—6. 

369.  Eemoving  Any   Liquors   or  Wines   Under   Any   Other   Than   Trade 

Names;   Penalty:   3449. 

370.  Oleomargarine. 

CHAPTER  XVII. 
NATIONAL  BANKS. 

§  371.  General  Provisions. 

372.  Falsely  Certifying  Checks:   5208. 

373.  Meaning  of  Word  "Wilfully"  in  the  Statute. 

374.  Acting  by  Others. 

375.  Embezzlement,    Abstraction,    Misapplication,   False   Entries:    5209, 

376.  Abstraction. 

377.  Misapplication. 

378.  False  Entries. 

379.  Other  Illustrative  Cases. 

CHAPTER  XVIII. 

BANKEUPTCY. 

§  380.  Section  29  of  the  Act. 

381.  Other  Offenses  of  the  Section. 

382.  Illustrative  Cases  and  Decisions. 

383.  Failure  to  Pay  Over  Money. 


TABLE   OF  CONTENTS  19 

CHAPTER  XIX. 

FOOD  AND  DRUGS. 

§  384.  Act  of  June  Thirtieth,  1906,  Generally. 

385.  Criminal  Sections. 

386.  Decisions  Under  Same. 

387.  Importation  of  Opium:  35  Stat.  L.,  614. 

CHAPTER  XX. 

PANDERING  AND  PROHIBITING  IMMORAL  USE  OF  WOMEN  AND 

GIRLS. 

§  388.     The  Act  of  February  Twentieth,  1907,  Prohibiting  Importation  for 
Prostitution. 

389.  Decisions  Thereunder. 

390.  Importing  Contract  Labor:  Section  4  of  the  Act. 

391.  Pandering:  Act  of  June  Twenty-fifth,  1910. 

392.  White  Slave  Traffic:   Act  of  June  Twenty-fifth,  1910. 

CHAPTER  XXI. 

SOME  GENERAL  AND  SPECIAL  PROVISIONS. 

§  393.     Punishment  of  Death  by  Hanging:   5325—323. 

394.  No    Conviction   to    Work    Corruption    of    Blood    or    Forfeiture    of 

Estate:   5326—324. 

395.  Whipping  and  the  Pillory  Abolished:  5327—325. 

396.  Jurisdiction  of  State  Courts:  5328—326. 

397.  Illustrative  Cases  on  Jurisdiction. 

398.  Other  Decisions. 

399.  Pardoning  Power. 

400.  Qualified  Verdicts  in  Certain  Cases:  II  Sup.,  538 — 330. 

401.  Body   of   Executed   Offender   May   Be    Delivered   to    Surgeon    for 

Dissection:   5340—331. 

402.  Who  Are  Principals:  5323  and  5427—332. 

403.  Punishment  of  Accessories:   5533  and  5534  and  5535 — 333. 

404.  Felonies  and  Misdemeanors:   New  Code,  335. 

405.  Omission  of  Words  ' '  Hard  Labor ' '  Not  to  Deprive  Court  of  Power 

to  Impose:  New  Code,  338. 

406.  Repealing  Provisions  of  New  Code. 

407.  Parol  of  United  States  Prisoners. 

408.  Witnesses  for  Poor  Accused:  878. 

409.  Publicity  for  Political  Contributions. 

CHAPTER  XXII. 

FORMS  OF  INDICTMENT. 


FEDERAL  CRIMINAL  LAW 


CHAPTER  I. 
THE  UNITED  STATES  CONSTITUTION. 

§  1.  Supreme  Law  of  the  Land. 

2.  Articles  V.,  VII.,  III.,  I.,  of  the  Conatitution. 

3.  Source  of  Federal  Law. 

4.  Kepublican  Guaranties. 

5.  Infamous  Crimes. 

6.  Jeopardy. 

7.  Witness  or  Discovery  against  Self,  and  Immunity. 

8.  Article  VI.  of  the  Constitution  with  Reference  to  Trial  Jury;  Copy 

of  Indictment,   and   Confronting  by  Witnesses. 

9.  Federal  Courts  Controlled  by  Federal  Statutes  only. 

§  1.  The  United  States  Constitution. — The  Constitution  of  the 
United  States  provides  in  Section  2  of  Article  VI.,  that,  "The 
Constitution  and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof ...  shall  be  the  supreme  law  of  the 
land ;  the  judges  in  every  state  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding. ' ' 

§  2.  Article  V.  of  the  Amendments  to  the  Constitution  pro- 
vides: 

"No  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces 
or  in  the  militia  when  in  actual  service  in  time  of  war  or  public 
danger;  nor  shall  any  person  be  subject,  for  the  same  offense, 
to  be  twice  put  in  jeopardy  of  life  or  limb;  nor  shall  be  com- 
pelled in  any  criminal  case  to  be  witness  against  himself;  nor 
be  deprived  of  life,  liberty,  or  property,  without  due  process  of 
law,  nor  shall  private  property  be  taken  for  public  use  without 
just  compensation." 

21 


22  THE  UNITED  STATES  CONSTITUTION 

Article  VI.  of  the  Amendments  provides : 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
state  and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law, 
and  be  informed  of  the  nature  and  cause  of  the  accusation;  to 
be  confronted  with  the  witnesses  against  him;  to  have  compul- 
sory process  for  obtaining  witnesses  in  his  favor,  and  to  have  the 
assistance  of  coimsel  for  his  defense" 

By  Article  III.  of  the  Constitution,  the  judicial  power  is 
vested  in  a  Supreme  Court,  and  in  such  inferior  courts  as  Con- 
gress may  establish. 

In  Section  8,  Article  I.,  Congress  is  authorized  specifically  to 
establish  naturalization  laws,  uniform  bankrupt  laws,  to  coin 
money,  to  establish  post-offices  and  post-roads,  to  promote  the 
progress  of  science  and  useful  arts,  and  to  make  all  laws  neces- 
sary and  proper  for  carrying  into  execution  any  of  the  powers 
vested  by  the  Constitution  in  the  government  of  the  United 
States,  or  in  any  department  or  officer  thereof. 

§  3.  From  these  specific  grants  of  power,  as  well  as  from  the 
power  that  is  inherent  in  sovereignty  to  pass  such  regulations 
as  will  conserve  the  liberties  of  the  individual  and  the  existence 
of  the  sovereignty,  has  come  the  Federal  criminal  law. 

The  power  to  establish  post-offices  and  post-roads  must  neces- 
sarily include  the  power  to  preserve  them  after  so  being  estab- 
lished; the  power  to  coin  money,  the  power  to  promote  science 
and  arts,  and  the  power  to  make  all  laws  necessary  to  promote  the 
general  welfare  of  the  government  is  sufficient,  when  delegated 
by  the  people,  for  the  foundation  of  a  code,  by  the  enforcement 
of  which  the  liberty,  property,  and  life  of  individuals  is  taken 
through  the  process  of  the  Courts. 

§  4.  There  are  certain  well  known  guarantees  of  our  republi- 
can form  of  government  that  are  in  the  Constitution,  most  of 
which  appear  in  the  respective  Constitutions  of  the  various 
states.    These  guarantees  are : 

(1)  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
saspended,  unless  when  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  it.  (Section  9,  Article  I.,  Para- 
graph 2.) 


THE  UNITED  STATES  CONSTITUTION  23 

(2)  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 
(Sec.  9,  Art.  I.,  Par.  3.) 

(3)  The  trial  of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury ;  and  such  trials  shall  be  held  in  the  state  where 
the  said  crimes  shall  have  been  committed;  but  when  not  com- 
mitted within  any  state,  the  trial  shall  be  at  such  place  or  places 
as  the  Congress  may  by  law  have  directed.  (Sec.  2,  Art.  III., 
Par.  3.) 

(4)  No  person  shall  be  convicted  of  treason,  unless  on  the 
testimony  of  two  A^atnesses  to  the  same  overt  act,  or  on  confession 
in  open  Court.  (Sec.  3.  Art.  III.,  Par.  1.)  The  Congress  shall 
have  power  to  declare  the  punishment  of  treason,  but  no  attain- 
der of  treason  shall  work  corruption  of  blood  or  forfeiture,  ex- 
cept during  the  life  of  the  person  attainted.  (Sec.  3,  Art.  III., 
Par.  2.) 

(5)  The  citizens  of  each  state  shall  be  entitled  to  all  the  priv- 
ileges and  immunities  of  citizens  in  the  several  states.  (Sec.  2, 
Art.  IV.,  Par.  1.)  A  person  charged  in  any  state  with  treason, 
felony,  or  other  crime,  who  shall  flee  from  justice  and  be  found 
in  another  state,  shall,  on  demand  of  the  executive  authority  of 
the  state  from  which  he  fled,  be  delivered  up,  to  be  removed  to 
the  state  having  jurisdiction  of  the  crime.  (Sec.  2,  Art.  IV., 
Par.  2.) 

(6)  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches  and 
seizures  shall  not  be  violated;  and  no  warrants  shall  issue  but 
upon  probable  cause,  supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  place  to  be  searched  and  the  persons  or 
things  to  be  seized.  (Amendment  IV.)  Amendment  V.  guaran- 
tees that  no  person  shall  be  held  to  answer  unless  upon  present- 
ment or  by  indictment,  and  that  no  person  shall  be  twice  put  in 
jeopardy  of  life  or  limb,  nor  compelled  in  any  criminal  case  to  be 
a  witness  against  himself,  nor  be  deprived  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law ;  and  Amendment  VI.  guarantees 
speedy  trial  in  the  proper  jurisdiction,  that  he  shall  be  confronted 
with  the  witnesses,  be  represented  by  counsel,  and  himself,  en- 
titled to  process  for  witnesses. 


24  THE  UNITED  STATES  CONSTITUTION 

(7)  Amendment  VIII.  provides  excessive  bail  shall  not  be  re- 
quired, nor  excessive  fines  imposed,  nor  cruel  and  unusual  punish- 
ment inflicted. 

§  5.  Infamous  Crimes  as  Meant  in  Art.  V.  of  Constitution. — In 
re  Classen,  140  United  States,  205,  is  the  ranking  Supreme  Court 
decision  as  to  what  is  an  infamous  crime,  and  that  case  holds 
that  a  crime  which  is  punishable  by  imprisonment  in  a  state 
prison  or  a  state  penitentiary,  is  an  infamous  crime,  whether  or 
not  the  accused  is  sentenced  to  hard  labor ;  and  the  determination 
of  the  question  rests  upon  what  the  statute  provides,  and  not 
upon  what  the  judge  imposes.  See  also  Fitzpatrick  vs.  United 
States,  178  U.  S.,  307;  McKnight  vs.  United  States,  113  Fed., 
452 ;  Good  Shot  vs.  United  States,  154  Fed.,  258 ;  Gritt  Garritee 
vs.  Bond,  102  Maryland,  383;  State  vs.  Nichols,  27  E.  I.,  83; 
United  States  vs.  Wynn,  9  Fed.,  894;  ex  parte  Wilson,  114  Uni- 
ted States,  423;  Mackin  vs.  United  States,  117  U.  S.,  351;  ex 
parte  McClusky,  40  Fed.,  74;  Parkinson  vs.  United  States,  121 
U.  S.,  281;  ex  parte  Bain,  121  U.  S.,  13;  United  States  vs.  Cad- 
wallader,  59  Fed.  679 ;  United  States  vs.  Dewalt,  128  U.  S.,  393. 

Section  335  of  the  new  Federal  Criminal  Code,  in  effect  Jan- 
uary 1,  1910,  contains  this  provision  : 

"All  offenses  which  may  be  punished  by  death  or  imprison- 
ment for  a  term  exceeding  one  year  shall  be  deemed  felonies; 
all  other  offenses  shall  be  deemed  misdemeanors." 

§  6.  Jeopardy. — Each  American  citizen,  owing  allegiance  to 
two  governments,  state  and  national,  is  the  beneficiary  of  both, 
and  also  liable  to  the  pains  and  penalties  of  both.  He  that  sells 
whiskey  must  comply  with  both  state  and  federal  laws,  and  a 
conviction  or  acquittal  under  the  laws  of  either  is  no  impediment 
or  safeguard  to  prosecution  from  and  by  the  other.  One  who 
sells  whiskey  without  taking  out  either  state  or  federal  license  is 
liable  to  prosecution  by  both  governments. 

The  Courts  have  held,  in  re  Boggs,  45  Federal,  475 ;  U.  S.  vs. 
Bamhart,  22  Federal,  290,  Fox  vs.  Ohio,  5  Howard,  U.  S.,  434; 
^Nloore  vs.  Illinois,  14  Howard,  U.  S.,  20,  that  the  jeopardy  clause 
in  the  Federal  Constitution  is  not  a  limitation  upon  any  state 
government,  but  I  do  not  understand  such  holding  to  mean  that 
if  one  were  put  in  jeopardy  twice  by  the  state  machinery,  that  he 


THE  UNITED  STATES  CONSTITUTION  25 

would  thereby  be  precluded  from  raising  the  question.  "While 
the  jeopardy  clause  in  the  Federal  Constitution  was  doubtless  in- 
tended to  relate  to  trials  in  the  Federal  courts,  I  am  sure  that 
the  constitutional  guarantee  could  be  successfully  relied  upon  by 
a  citizen  of  a  state,  if  the  effort  were  made  to  place  him  in 
jeopardy  twice  by  the  state  government. 

It  will  be  borne  in  mind  that  a  former  conviction  or  acquittal 
must  be  pleaded,  and  the  protection  is  as  ample  whether  the 
former  trial  resulted  in  a  conviction  or  an  acquittal.  United 
States  vs.  Wilson,  7  Peters,  159 ;  United  States  vs.  Ball,  163  U. 
S.,  662 ;  ex  parte  Glenn,  111  Federal,  261. 

§  7.  Witness  Against  Self. — That  clause  of  Amendment  V., 
which  declares  that  no  person  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself  is  not  limited  to  the  defend- 
ant. It  is  a  privilege  that  can  be  claimed  by  any  witness.  Coun- 
selman  vs.  Hitchcock,  142  U.  S.,  562;  U.  S.  vs.  Collins,  145  Fed- 
eral, 711 ;  in  re  Hess,  134  Federal,  111 ;  United  States  vs.  Praeger, 
149  Federal,  484 ;  Hale  vs.  Henkel,  201  U.  S.,  67 ;  Jack  vs.  Kan- 
sas, 199  U.  S.,  381;  Burrell  vs.  Montana,  194  U.  S.,  578;  Ballman 
vs.  Fagin,  200  U.  S.,  195;  Edelstein  vs.  United  States,  149  Fed- 
eral, 642 ;  United  States  vs.  Simon,  146  Federal,  92 ;  in  re  Briggs, 
135  N.  C,  122;  U.  S.  vs.  Price,  163  F.,  904. 

There  is  nothing  more  barbarous  than  to  compel  disclosures 
which  will  degrade  and  convict  the  person  so  compelled.  Vol- 
untary appearance  no  violation  or  deprivation  of  constitu- 
tional guarantee,  Pendleton  vs.  U.  S. — U.  S.  Sup.  Ct.,  October 
Term,  1909. 

Section  860  of  the  Revised  Statutes  of  the  United  States  pro- 
vides that  no  pleading  of  a  party  nor  any  discovery  or  evidence 
obtained  from  a  party  or  a  witness  by  means  of  a  judicial  pro- 
ceeding in  this  or  any  foreign  country  shall  be  given  in  evidence 
or  in  any  manner  used  against  him  or  his  property  or  his  estate 
in  any  Court  of  the  United  States  in  any  criminal  proceeding  or 
for  the  enforcement  of  any  penalty  or  forfeiture.  An  interesting 
case,  showing  the  extent  of  the  doctrine  and  the  care  with  which 
the  Courts  have  preserved  it,  is  McKnight  vs.  the  United  States, 
115  Federal,  981.  In  that  case,  the  Circuit  Court  of  Appeals  for 
the  Sixth  Circuit  condemned  as  unconstitutional  a  demand  by 


26  THE  rXITED  STATES  CONSTITUTION 

the  District  Attorney  of  the  defendant  for  the  original  of  a 
paper  in  evidence. 

As  to  inununity  from  prosecution  because  of  testimony  before 
Grand  Jury,  see  U.  S.  vs.  Heike,  175  Fed.,  852.  "When  such  is 
plead  in  bar  burden  is  on  the  defendant,  for  discussion  thereon 
see  same  case. 

§  8.  Amendment  VI.  of  the  Constitution  means  a  trial  by  a  com- 
mon law  jury,  which  consisted  of  twelve  men,  ^Maxwell  vs.  Dow, 
176  U.  S.,  586;  Thompson  vs.  Utah,  170  U.  S..  349,  and  to  such  a 
hearing  as  the  terms  and  rules  of  the  Court  permit.  Beavers  vs. 
Haubert,  198  U.  S.,  86,  and  to  such  an  explanation  of  the  offense 
charged  as  to  afford  the  defendant  ample  protection  from  any 
subsequent  prosecution  and  to  enable  him  to  make  his  defense 
in  the  present  one.  United  States  vs.  Cruickshank.  92  U.  S.,  557 ; 
United  States  vs.  Martindale,  146  Federal,  291 ;  United  States 
vs.  Green,  136  Federal,  641 ;  Fitzpatrick  vs.  United  States,  178 
U.  S.,  309 ;  Terry  vs.  United  States,  120  Federal,  486 ;  Milby  vs. 
United  States,  149  Federal,  641;  Bartlett  vs.  United  States,  106 
Federal,  885.  It  is  not  necessary,  however,  to  furnish  a  copy  of 
the  indictment  to  the  defendant.  United  States  vs.  Vanduzee, 
140  U.  S.,  173;  United  States  vs.  Jones,  193  U.  S.,  530;  Balliet 
vs.  United  States,  129  Federal,  689,  unless  the  prosecution  is  for 
treason  or  other  capital  offense,  in  which  event  Section  1033  of 
the  Revised  Statutes  of  the  United  States  provides  the  pro- 
cedure, whicli  includes  a  copy  of  the  indictment  for  the  de- 
fendant. The  only  exceptions  to  the  guarantee  that  the  defend- 
ant shall  be  confronted  with  the  witnesses  against  him  are  the 
introduction  of  dying  declarations  and  the  introduction  of  the 
testimony  of  a  deceased  witness  who  was  sworn  upon  a  former 
trial,  and  the  testimony  taken  in  stenographic  form,  such  testi- 
mony to  be  supported  by  the  oath  of  the  stenographer,  Kirby 
vs.  United  States,  174  U.  S.  61 ;  West  vs.  Louisiana,  142  Federal, 
4;  Flynn  vs.  People,  222  Illinois,  309;  Robertson  vs.  Baldwin, 
165  U.  S.,  281  ;  Mattox  vs.  United  States.  156  I^  S.,  240;  Motes 
vs.  United  States,  178  U.  S.,  471. 

Section  878  of  the  Revised  Statutes  of  the  United  States  au- 
thorizes the  issuing  of  process  for  indigent  defendants  when 
such  defendants  make  affidavit  in  accordance  therewith,  but  a 


THE  ITNITED  STATES  CONSTITUTION  27 

rule  of  the  court  limiting  such  witnesses  to  four  is  not  un- 
reasonable. 

§  9.  It  is  well  for  the  attorney  whose  practice  has  been  largely 
confined  to  the  state  courts  to  ever  bear  in  mind  that  the  rules 
and  forms  of  practice  and  methods  of  pleading  that  are  adopted 
by  Federal  Statute  for  procedure  in  the  Federal  Courts,  do  not 
apply  to  any  extent  in  the  trial  of  Federal  criminal  law.  It  is 
entirely  immaterial  what  the  state  statutes  provide  with  reference 
to  procedure  in  criminal  cases,  so  far  as  the  Federal  Courts  are 
concerned.  The  Federal  statutes  alone  control  in  criminal  mat- 
ters. In  Logan  vs.  United  States,  144  U.  S.,  301,  the  Supreme 
Court  held  that  even  Section  858  of  the  Revised  Statutes  of  the 
United  States,  which,  in  its  concluding  paragraph,  seems  to  pro- 
gram the  line  of  competency  for  witnesses  in  the  Courts  of  the 
United  States  did  not  relate  to  criminal  trials  or  witnesses  in 
criminal  cases.    The  Court  in  that  case  said : 

"For  the  reasons  above  stated,  the  provisions  of  Section  858 
of  the  Revised  Statutes,  that  'the  laws  of  the  state  in  which  the 
court  is  held  shall  be  the  rules  of  decision  as  to  competency  of 
wdtnesses  in  the  Courts  of  the  United  States,  in  trials  at  common 
law  and  in  equity  and  admiralty,'  has  no  application  to  criminal 
trials;  and.  therefore,  the  competency  of  witnesises  in  criminal 
trials  in  the  Courts  of  the  United  States.  .  .  .is  not  governed  by 
a  statute  of  the  state. ' ' 

Criminal  cases  in  the  Federal  courts  are  governed  and  con- 
trolled by  Federal  statutes  and  Federal  decisions,  and  state 
statutes  and  state  decisions  are  inapplicable.  Jones  vs.  United 
States,  162  Fed.,  419;  United  States  vs.  Reid,  12  Howard,  363; 
Starr  vs.  United  States,  153  U.  S.,  625 ;  Jones  vs.  United  States, 
137  U.  S.,  211;  Simmons  vs.  United  States.  142  U.  S.,  148;  Lang 
vs.  United  States,  133  Fed..  204;  U.  S.  vs.  Davis.  103  Fed.,  457; 
U.  S.  vs.  Hall,  53  Fed.,  353 ;  U.  S.  vs.  Stone.  8  Fed.,  239. 


CHAPTER  II. 

GENERAL  PROVISIONS   APPLICABLE   TO   THE   PRAC- 
TICE. 

§  10.  United  States  Trial  Courts. 

11.  United  States  Commissioners. 

12.  Prosecution  Begun  by  Indictment. 

13.  Grand  Jury;  Indictment,  Eemission  of  Same;  Copy  of  Indictment; 

List  of  "Witnesses. 

14.  Preliminary  Proceedings   of  Prosecution,  Eemoval,   and   Extent  of 

Inquiry  by  Court  Into  Indictment. 

15.  Bail  Bond,  Recognizance;  Action  Thereon. 

16.  Challenges  to  Jurors;   Impeachment  of  Verdict;  Loss  of  Juror. 

17.  Eeturn,  Endorsements  on,  and  Forms  of  Indictment. 

18.  Consolidation  of  Indictments;   Joinder  of  Defendants. 

19.  Question  of  Duplicity  in  Indictment,   and  When  to  Raise   It. 

20.  Confessions,  Full;  Nature  of.  Voluntary,  Etc. 

21.  Admissibility  of  Documentary  Evidence  Wliieh  Has  Been  Secured 

Illegally. 

22.  Comments,  Improper  Argument,  of   District  Attorney  or  Defense; 

Failure  of  Defendant  to  Furnish  Character  Testimony;  Cannot 
Compel  Defendant  to  Give  Testimony  Against  Himself;  Comment 
on  Failure  of  Defendant  to  Testify  in  His  Own  Behalf. 

23.  Prosecuting  Officer  in  Grand  Jury  Room ;  Limits  of  His  Expression. 

24.  Jury;    Right   of   Trial;    Waiver   Thereof;    Necessity   for   Requisite 

Number;   Illegal  to  Try  with  Eleven. 

25.  Care  of  Jury ;  Moral  Weight  of  Verdict ;  Legal  Weight  of  Verdict ; 

Newspapers  with  Jury;   Attempts  to  Influence  Verdict. 

26.  Evidence  of  Good  Character  of  Defendant;    Charge  on  Presump- 

tion Thereof. 

27.  Instructions    of    the    Court,    Form,    Whether   in   Writing    or   Oral; 

Special   Instructions. 

28.  Opinion  of  Court;  How  Guarded. 

29.  Court   Cannot    Comment    on   Lack    of    Evidence;    Presumption    of 

Good  Character. 

30.  Further  Limitation  on  Comment  of  Court. 

31.  Verdict  as  to  Part. 

32.  Sentence;   Correction  Thereof;    Time  of  Sentence;   Authority  for. 

28 


GENERAL  PROVISIONS  APPLICABLE   TO  THE  PRACTICE     29 

33.  No  Authority  to  Suspend  Sentence. 

34.  Correction  of  Sentence;  Control  of  Court  Over  Sentence  After  End 

of  Term;  New  Trial,  Motion  for,  When  to  Be  Made;  May  Be 
Made  in  Court  of  Appeals;  Null  and  Void  Criminal  Judgment, 
Whether  May  Be  Corrected,  and  How. 

35.  Remission  of  Penalty  on  Forfeited  Recognizance. 

36.  Bail  After  AflSrmance  of  Judgment. 

37.  Severance,  Separate  Trials;  Discretion  of  Court. 

38.  Eaieas  Corpus,  Conclusions  of  Law  Therein,  Instead  of  Statement 

of  Facts. 

39.  Immunity  Under  Commerce   Act,  by  Reason  of   Testimony. 

40.  Improper  Person  in  Grand  Jury  Room. 

41.  Private  Prosecutors  Unknown  in  Federal  Courts. 

42.  Proof  of  Witness'  Former  Conviction. 

§  10.  Article  III.  of  the  Constitution  of  the  United  States 
provides  in  substance  that  the  judicial  power  of  the  United 
States  shall  be  vested  in  a  Supreme  Court,  and  in  such  inferior 
Courts  as  Congress  may  establish.  Passing  by  the  courts  of  the 
District  of  Columbia  and  the  territorial  courts,  there  are  but 
two  Federal  courts  in  all  the  states  of  the  Union,  in  which  in- 
dictments and  informations  may  be  lodged  and  tried,  to  wit,  the 
Circuit  and  District  Courts. 

§  11.  The  present  United  States  Commissioners,  that  corre- 
spond in  a  general  way  to  magistrates,  justices  of  the  peace,  and 
other  state  examining  officers,  were,  imder  the  old  law,  called 
Commissioners  of  the  Circuit  Courts;  but  by  the  Act  of  May, 
1896,  all  Circuit  Court  Commissioners  were  abolished,  and  there- 
after it  became  the  duty  of  the  District  Court  of  each  judicial 
district  in  the  United  States  to  appoint  such  number  of  persons 
as  it  might  deem  necessary,  to  be  known  as  United  States  Com- 
missioners. This  Act  of  May,  1896,  was  an  amendment  to  the  old 
Section  627  of  the  Eevised  Statutes.  The  Criminal  Code  of  1910 
does  not  change  the  Act  of  1896. 

A  United  States  Commissioner,  however,  is  not  a  Court.  In 
the  case  of  in  re  Sing  Tuck,  126  Federal,  397,  the  Court  held  a 
United  States  Commissioner  to  be  neither  a  court  nor  a  judge, 
nor  vested  by  law  with  any  part  of  the  judicial  power  of  the 
United  States.  A  United  States  Commissioner  is  an  inferior 
officer  of  a  court,  appointed  by  the  court  under  authority  of 


30     GENEEAL  PEOVISIONS  APPLICABLE  TO  THE  PEACTICE 

Congress,  with  defined  and  circumscribed  powers.  United 
States  vs.  Case,  8  Blatchf.,  250;  United  States  vs.  Schumaan,  2 
Abb.  U.  S.,  523 ;  in  re  Kaine,  14  Howard,  103 ;  United  States  vs. 
Clark,  1  Gall,  497.  See  also  in  re  Grin,  112  Federal,  795;  Rice 
vs.  Ames,  180  U.  S.,  371;  Wright  vs.  Henkel,  190  U.  S.,  62; 
Beavers  vs.  Henkel,  194  U.  S.,  87,  as  to  other  powers  of  United 
States  Commissioners,  under  proper  appointment  from  the 
Court. 

In  100  Federal,  page  950,  in.  re  Perkins,  it  was  held  that  a 
United  States  Commissioner  cannot  punish  for  contempt,  and 
the  doctrine  is  reiterated  that  a  United  States  Commissioner 
does  not,  and  cannot,  hold  a  United  States  Court,  but  is  a  part 
of  the  Court  appointing  him ;  and  when  there  be  disobedience  to 
his  process  or  authority,  the  Commissioner  properly  refers  such 
disobedience  to  the  Court  by  whose  authority  he  exists, 
which  Court  pursues  the  proper  methods  for  contempt  pro- 
ceedings. In  United  States  vs.  Wah,  160  Federal,  207, 
the  above  doctrine  has  been  reiterated,  and  it  is  clearly 
stated  and  argued,  citing  authorities,  that  United  States 
Commissioners  are  neither  judges  nor  courts,  nor  do  they 
hold  courts,  though  at  some  times  acting  in  a  quasi-judicial 
capacity,  nor  do  they  possess  the  power  of  courts,  except  in  so 
far  as  the  Acts  of  Congress  conferring  certain  authority  and  im- 
posing certain  duties  on  them,  especially  confer  the  same. 

We,  therefore,  have,  as  originally  stated,  but  two  nisi  prius 
courts  in  the  states. 

§  12.  Prosecution  Begun  by  Indictment. — While  there  remain 
some  few  statutes  that  impose  punishments  sufficiently  light  to 
permit  prosecution  to  be  begun  by  information,  most  prosecu- 
tions must  be  begun  by  indictment. 

§  13.  Grand  Jury  and  Indictment. — The  Treasury,  the  Post- 
office,  the  Internal  Revenue  and  other  departments  of  the  Gov- 
ernment have  in  active  service  what  may  be  termed  agents  or 
inspectors.  It  is  the  duty  of  these  officials  to  be  diligent  in  the 
discovery  of  offenses  against  the  Federal  law,  and  to  report  such 
discoveries  to  the  proper  District  Attorney,  and  upon  his  advice 
make  complaint  or  affidavit  before  the  proper  United  States 
Commissioner.     From  such  Commissioners'  cases,  and  from  re- 


GENEEAL  PROVISIONS  APPLICABLE   TO  THE  PRACTICE     31 

ports  of  various  agents  upon  which  affidavits  or  complaints  have 
not  been  ordered,  the  prosecution  presents  to  a  grand  jury  evi- 
dence bearing  thereon.  This  body  of  inquiry,  under  Section 
808  of  the  Revised  Statutes,  must  consist  of  not  less  than  sixteen 
nor  more  than  twenty-three  men,  twelve  of  whom  must  vote  in 
favor  of  a  bill  before  it  can  be  returned.  Section  1021,  R.  S. 
After  the  return  of  a  bill  into  Court,  if  there  be  any  dilatory 
plea  that  the  defendant  thinks  to  urge,  he  must  speed  to  do  so. 
A  delay  of  five  days  in  presenting  such  a  plea  may  be  fatal  to 
him ;  and  in  the  presentment  of  such  a  plea,  there  must  be 
specifically  set  out  the  causes  and  particulars  of  the  injury  to 
liim.  In  Agnew  vs.  United  States,  165  United  States,  36,  a 
delay  of  five  days  was  noted  in  treating  the  plea  as  insufficient. 
See  also  Lowden  vs.  United  States,  149  Federal,  675,  and  Wilder 
vs.  U.  S.,  143  F.,  439.  Under  a  statute  declaring  that  the  names 
first  drawn  from  a  jury  box  shall  constitute  the  grand  jury,  and 
the  latter  the  petit  jury,  a  grand  jury  from  which  jurors  whose 
names  were  first  called  were  improperly  excused,  and  their 
places  filled  by  persons  whose  names  were  thereafter  drawn  from 
the  box,  was  illegal.  After  an  indictment  is  returned,  the  Dis- 
trict Attorney  may,  by  proper  order,  remit  the  same  to  the 
Circuit  Court,  if  it  was  returned  into  the  District  Court;  or,  if 
it  was  returned  into  the  Circuit  Court,  he  may,  by  proper  order, 
have  it  remitted  to  the  District  Court.  Section  1037,  R.  S. 
Such  remission,  however,  cannot  be  demanded  by  the  defendant, 
nor  will  such  remission  be  suffered  to  continue  the  case.  Bar- 
rett vs.  United  States,  169  U.  S.,  228.  These  remissions  from 
one  court  to  another  are  allowed  in  order  to  facilitate  the  public 
business.  United  States  vs.  Haynes,  26  Federal,  857 ;  in  re 
Haynes,  30  Federal,  767;  Kelley  vs.  United  States,  27  Federal. 
616.  If,  however,  the  prosecution  happens  to  be  by  information, 
there  is  no  provision  in  the  statute  for  remitting  the  informa- 
tion from  one  of  these  courts  to  the  other,  and  the  Courts  have 
held  that  1037  must  be  strictly  construed,  and  that  the  word 
indictment  does  not  include  an  information.  United  States  vs. 
Tiemay.  3  MeCrary.  608;  16  Fed.,  513.  A  copy  of  the  indict- 
ment is  not  furnished  as  a  matter  of  course  to  defendants.  When 
a  prosecution  is  for  treason,  however,  or  other  capital  offense, 


32     GENERAL  PROVISIONS  APPLICABLE  TO  THE  PRACTICE 

then  a  copy  of  the  indictment,  and  a  list  of  the  jurors  and  wit- 
nesses must  be  delivered  to  the  defendant,  in  the  first  instance 
at  least  three  days  before  trial,  and  in  the  last  instance  for  at 
least  two  days  before  trial,  in  accordance  with  Section  1033. 
In  other  eases,  however,  copy  of  the  indictment  is  unnecessary. 
Balliet  vs.  United  States,  129  Fed.,  689;  Jones  vs.  U.  S.,  162 
F.,  417 ;  Ball  vs.  U.  S.,  147  F.,  32. 

§  14.  Preliminary  Proceedings. — We  have  heretofore  noticed 
the  provisions  relating  to  the  appointment  of  United  States  Com- 
missioners. If  warrant  is  secured  prior  to  indictment,  such  war- 
rant is  issued  under  the  hand  and  seal  of  the  United  States  Com- 
missioner, and  the  offender  is  brought  before  him  for  preliminary 
hearing,  and  is  entitled  to  make  his  bail  before  that  officer.  The 
general  authority  for  such  procedure  is  found  in  Section  1014. 
If  one  be  arrested  in  a  district  different  from  that  in  which  he 
is  indicted,  he  is  entitled  to  be  taken  before  the  nearest  United 
States  Commissioner,  who  inquires  into  his  identity,  and  fixes 
bail  for  his  appearance  before  the  proper  Court  of  the  proper 
district.  If  the  prisoner  cannot  make  the  bail,  application  is 
made  to  the  District  Judge  for  a  warrant  of  removal,  under 
Section  1029. 

The  latest  authority  seems  to  be  that  upon  proper  application, 
the  District  or  Circuit  Court  may  inquire  into  the  validity  of  the 
indictment,  so  far  as  the  jurisdiction  is  concerned,  before  ordering 
the  defendant  moved  to  the  district  in  which  the  indictment  was 
found.  In  United  States  vs.  Smith,  173  Federal,  this  doctrine 
was  announced,  and  the  Court  refused  to  remove  the  publisher 
of  a  newspaper  in  Indianapolis  to  the  District  of  Columbia  for 
trial.  To  the  same  effect  is  Findley  vs.  Treat,  205  U.  S.,  20;  also 
131  Fed.,  968;  U.  S.  vs.  Green,  136  Fed.,  618;  United  States  vs. 
Peckham.  143  Fed.,  625;  119  Fed.,  93;  in  re  Benson,  130  Fed.. 
486;  United  States  vs.  Green,  100  Fed.,  941;  Pereles  vs.  Weil. 
157  Fed.,  419.  Probable  cause  is  the  only  question  to  be  inquired 
into  when  removal  on  indictment  is  asked.  In  re  Quinn,  176  F., 
1020. 

§  15.  Under  Section  1014,  all  bail  bonds  and  recognizances 
are  to  be  as  near  like  those  in  the  state  court  as  the  difference 
in  codes  and  practice  will  permit.    In  re  Bellmap,  96  Fed.,  614; 


GENEEAL  PROVISIONS  APPLICABLE   TO  THE  PRACTICE     33 

U.  S.  VS.  Hunt,  166  U.  S.,  1063 ;  U.  S.  vs.  Lois,  149  Fed.,  277. 
In  United  States  vs.  Zarafonitis,  150  Federal,  97,  the  Court  held 
that  all  proceedings  for  holding  an  accused  person  to  answer 
to  a  criminal  charge  before  a  court  of  the  United  States  are  as- 
similated to  those  under  the  laws  of  the  state  in  which  the  pro- 
ceedings take  place,  and  the  sufficiency  of  a  bail  bond  taken  in 
such  proceedings  is  to  be  determined  by  the  law  of  the  state, 
though  in  Hardie  vs.  United  States,  71  Fed.,  158,  the  Court  held 
that  a  bail  bond  taken  before  a  United  States  Commissioner, 
though  affidavit  and  information  charge  no  offense,  is  good,  and 
may  be  enforced.  The  United  States  may  enforce  a  forfeited 
bail  bond  of  recognizance  by  an  action  at  law  or  sire  facias. 
United  States  vs.  Zarafonitis,  150  Fed.,  99;  United  States  vs. 
Insley,  54  Fed.,  221.  In  170  Federal,  613,  United  States  vs.  Lee, 
the  court  held  that  an  indemnified  surety  may  be  refused,  and  in 
the  same  Federal  Reporter,  at  page  476,  in  United  States  vs. 
Marrin,  the  Court  held  that  a  defendant  who  goes  where  he  can 
be  arrested,  and  thus  causes  a  breach  of  his  bond,  renders  his 
sureties  liable. 

§  16.  Challenges. — Section  819  of  the  Revised  Statutes  allows 
the  defendant  twenty  challenges,  and  the  United  States  five 
peremptory  challenges,  when  the  offense  is  treason  or  capital. 
On  the  trial  of  any  other  felony,  the  defendant  is  entitled  to  ten ; 
and  the  United  States  to  three  peremptory  challenges ;  and  in  all 
other  cases,  civil  and  criminal,  each  party  shall  be  entitled  to 
three  peremptory  challenges.  Under  Section  335  of  the  1910 
Code,  however,  all  offenses  which  may  be  punished  by  death  or 
imprisonment  for  a  term  exceeding  one  year  are  felonious,  and 
all  other  offenses  misdemeanors,  and  it  is  now  an  easy  matter 
to  determine  just  how  many  challenges  the  defendant  is  en- 
titled to.  If,  however,  there  be  more  than  one  defendant,  and 
the  trial  is  had  without  severance,  the  defense  will  be  allowed 
no  more  challenges  than  if  there  were  but  one  defendant  on 
trial,  R.  S.  819. 

In  a  note  to  Jeff  Harrison  vs.  United  States,  163  U.  S.,  140, 
as  reported  in  the  41  La\^yers  Reports  Annotated,  at  page  104, 
is  a  very  valuable  compilation  of  the  decisions  involving  the  fol- 
lowing points: 


34     GENEEAL  PROVISIONS  APPLICABLE  TO  THE  PRACTICE 

As  to  trial  by  jury,  how  affected  by  Seventh  Amendment  to 
the  Constitution,  New  York  Supreme  Court  Justices  vs.  United 
States,  reported  in  76  U.  S.,  282. 

As  to  jury,  of  what  number;  practice  in  regard  to;  illness  or 
insanity  of  one ;  thirteen  or  eleven  jurors ;  wrong  person  serv- 
ing as  juror  by  mistake;  Silsby  vs.  Foote,  14  Howard,  218;  14 
Law  Ed.,  394,  and  the  notes  on  page  394  of  the  14  Law  Ed. 

As  to  causes  of  challenges  of  jurors  and  their  qualifications, 
Clinton  vs.  Englebrecht,  80  U.  S.,  449,  13  Wallace;  20  Law  Ed., 
659,  and  the  note. 

As  to  discharge  or  withdrawal  of  jurors  before  verdict,  effect 
of,  United  States  vs.  Perez.  9  Wheat.,  578;  Vol.  6,  Law  Ed.,  165. 

As  to  impeachment  of  verdict  by  jurors ;  affidavit  of  parties  or 
third  persons;  affidavits  of  jury  to  sustain  verdict  Doss  vs. 
Tyack,  14  Howard,  296 ;  14  Law  Ed.,  428,  and  note  thereunder. 

Challenges  to  jurors ;  challenges  to  the  array  and  to  the  panel ; 
challenges  to  individual  jurors;  peremptory  and  for  cause,  full 
and  complete  note  on  page  104  of  Book  41,  Law  Ed. 

§  17.  Indictment  and  Return  of  Same. — The  indictment  should 
always  be  returned  into  open  Court  by  the  entire  grand  jury. 
The  best  practice  is  for  the  grand  jury  to  be  poled  when  they  re- 
port an  indictment.  Of  course,  there  must  be  at  least  sixteen 
present  when  indictments  are  presented,  which  sixteen  must  in- 
clude the  foreman. 

In  172  Federal,  page  646,  Reingar  vs.  United  States,  the  Cir- 
cuit Court  of  Appeals  held  that  an  indictment  delivered  by  the 
foreman  alone  to  the  clerk  of  the  Court  when  Court  was  not  in 
session,  is  not  a  bill  of  indictment  within  the  meaning  of  the 
Constitution.    I  am  sure  this  opinion  states  the  law. 

In  the  same  volume  of  the  Federal  Reporter,  in  the  case  of 
tbo  TTnited  States  against  Breese,  the  District  Court,  upon  a 
somewhat  different  state  of  facts,  holds  a  little  bit  differently,  but 
the  Reingar  case,  cited  supra,  is  undoubtedly  the  law. 

Endorsements  on  Indictments. — In  the  case  of  Williams  against 
the  United  States,  168  I^.  S.,  382,  the  Supreme  Court  held  that 
endorsements  on  the  margin  of  an  indictment,  referring  to  cer- 
tain statutes  Avhich  do  not  support  it,  although  thoy  may  have 
been  erroneously  supposed  to  do  so  by  the  District  Attorney  who 


GENERAL  PROVISIONS  APPLICABLE   TO  THE  PRACTICE     35 

drew  it,  do  not  make  the  indictment  invalid,  if  it  properlj^ 
charges  an  offense  nnder  another  statute.  The  exact  words  of 
the  Court  are  as  follows: 

"It  is  said  that  these  indictments  were  not  returned  under 
that  statute  (5481),  and  that  the  above  endorsement  on  the 
margin  of  each  indictment  shows  that  the  District  Attorney  of 
the  United  States  proceeded  imder  other  statutes  that  did  not 
cover  the  case  of  extortion  committed  bv  Chinese  Inspector 
under  color  of  his  office.  It  is  wholly  immaterial  what  statute 
was  in  the  mind  of  the  District  Attorney  when  he  drew  the  in- 
dictment, if  the  charges  made  are  embraced  by  some  statute  in 
force.  The  endorsement  on  the  margin  of  the  indictment  con- 
stitutes no  part  of  the  indictment,  and  does  not  add  to  or 
weaken  the  force  of  its  averments.  We  must  look  to  the  indict- 
ment itself,  and  if  it  properly  charges  an  offense  under  the 
laws  of  the  United  States,  that  is  sufficient  to  sustain  it,  al- 
though the  representative  of  the  United  States  may  have  sup- 
posed that  the  offense  charged  was  covered  by  a  different 
statute. ' ' 

To  be  in  good  form,  the  bill  should  be  signed  upon  the  cover 
by  the  prosecuting  officer  and  b}^  the  foreman  of  the  Grand 
Jury,  and  should  be  endorsed,  "A  true  bill,"  and  should  bear 
the  file  marks  of  the  clerk ;  but  if  the  bill  be  signed  inside  by  the 
prosecuting  officer  and  by  the  foreman  of  the  Grand  Jury,  the 
Courts  hold  that  such  signatures  are  sufficient. 

It  is  entirely  immaterial  what  provisions  the  various  states 
may  make  with  reference  to  the  forms  of  indictment  therein; 
the  Federal  statutes  control  in  the  enforcement  of  the  Federal 
criminal  law. 

§  18.  Consolidation  of  Indictments. — By  Section  1024  of  the 
Revised  Statutes,  several  charges  against  the  same  person  may 
be  included  in  the  same  indictment,  and  separate  indictments 
against  the  same  person  for  the  same  class  of  crimes  may  be 
consolidated  by  the  order  of  the  Court.  "Williams  vs.  United 
States,  168  U.  S.,  388;  Pointer  vs.  United  States,  151  U.  S.,  396; 
Logan  vs.  United  States,  144  U.  S.,  301.  In  the  case  of  United 
States  against  Dietrich,  126  Fed.,  670,  the  doctrine  is  made 
clearer  by  being  distinguished,  and  the  Court  there  holds  two 
persons  cannot  be  indicted  in  the  same  count,  one  for  giving,  and 
the  other  for  receiving  bribe. 


36     GENERAL  PROVISIONS  APPLICABLE  TO  THE  PRACTICE 

The  case  of  McElroy  vs.  United  States,  164  U.  S.,  76,  does  not 
in  decision  or  dictum  differ  from  the  above  authorities.  The 
inquiry  in  that  case  was,  "whether  counts  against  five  defend- 
ants can  be  coupled  with  a  count  against  part  of  them,  or  of- 
fenses charged  to  have  been  committed  by  all  at  one  time,  can 
be  joined  with  another  and  distinct  offense  committed  by  part  of 
them  at  a  different  time. ' '  The  Court  in  that  case  held  that  the 
statute  did  not  authorize  that  to  be  done,  and  speaking  there- 
upon, said:  "It  is  clear  that  the  statute  (1024)  does  not  author- 
ize the  consolidation  of  indictments  in  such  a  way  that  some  of 
the  defendants  may  be  tried  at  the  same  time  with  other  defend- 
ants charged  with  a  crime  different  from  that  for  which  they  all 
are  tried."  This  decision,  of  course,  does  not  interfere  with  the 
statute,  or  the  doctrine  announced  by  Mr.  Justice  Harlan  in  the 
AYilliams  case,  cited  supra,  that.  "The  indictments  against  the 
same  person  charging  offenses  of  the  same  kind,  provable  by  the 
same  sort  of  evidence,  can  be  consolidated  and  tried  together 
without  embarrassing  the  accused  in  making  his  defense."  This 
doctrine  is  approved  in  Olson  vs.  United  States,  133  Fed.,  852; 
Dolan  vs.  United  States,  133  Fed.,  447,  and  distinguished,  but 
not  controverted,  in  Betts  vs.  United  States.  132  Fed.,  240. 

§  19.  Question  of  Duplicity  in  Indictment. — It  is  too  late  to 
raise  the  question  of  duplicity  after  verdict  by  motion  in  arrest 
of  judgment.  INIorgan  vs.  U.  S.,  148  F.,  190;  Bishop's  New 
Crim.  Proc,  Vol.  1,  §§442,  443;  U.  S.  vs.  Bayard,  16  F.,  376; 
Proler  vs.  U.  S.,  127  F.,  509 ;  Conners  vs.  U.  S.,  158  U.  S.,  408. 
The  safe  practice  is  to  raise  all  questions  speedily  by  exception 
or  demurrer. 

§  20.  Confessions. — Because  of  the  adoption  by  many  of  the 
States  of  statutes  which  prescribe  certain  conditions  limiting 
or  admitting  confessions  of  those  charged  with  crime  in  evidence, 
it  is  well  to  bear  in  mind  that  no  statute  bearing  thereon  has 
been  passed  by  Congress.  The  Fifth  Amendment  to  the  Con- 
stitution and  Section  860  of  the  1878  Revised  Statutes,  that  bear 
upon  such  testimony,  are  as  follows ^ 

"....Nor  shall  any  person  be  compelled,  in  any  criminal 
case,  to  be  a  witness  against  him.self. " — Fifth  Amendment  to  the 
Constitution. 


GENERAL  PROVISIONS  APPLICABLE   TO  THE  PRACTICE     37 

"No  pleading  of  a  party,  nor  any  discovery  or  evidence  ob- 
tained from  a  party  or  ^ntness  by  means  of  a  judicial  proceeding 
in  this  or  any  foreign  comitry,  shall  be  given  in  evidence  or  in 
any  manner  used  against  him  or  his  property  or  estate  in  any 
court  of  the  United  States  in  any  criminal  proceedings,  or  for  the 
enforcement  of  any  penalty  or  forfeiture;  provided,  that  this 
section  shall  not  exempt  any  party  or  witness  from  prosecution 
and  pimishment  for  perjury  committed  in  discovering  or  testi- 
fying, as  aforesaid." — Section  860,  1878  Revised  Statutes,  U.  S. 

Of  course,  the  limitations  and  meaning  of  Section  860  have 
been  determined  and  decided  repeatedly.  In  170  Federal,  715, 
Cohen  vs.  United  States,  the  Court  held  that  it  applied  to  bank- 
rupt schedules,  and  that,  therefore,  such  schedules  were  not  ad- 
missible against  the  bankrupt.  The  contrary  was  held  in  United 
States  vs.  Brod,  176  Federal,  page  165,  and  the  latter  is  perhaps 
the  ranking  authority.  In  United  States  vs.  Bell,  81  Federal, 
830,  the  Court  held  that  the  constitutional  protection  was  broad- 
er than  Section  860,  and  in  passing  upon  a  prosecution  for  per- 
jury, alleged  to  have  been  committed  in  a  statement  made  before 
a  Pension  Examiner  by  an  ignorant  person,  such  statement 
was  excluded  on  the  proposition  that  while  the  person  appeared 
before  the  Examiner,  and  submitted  to  the  examination,  yet  such 
appearance  was  not  conclusive  that  the  statement  was  voluntary^ 
and  that  the  constitutional  right  of  the  person  to  remain  silent 
had  not  in  fact  been  infracted. 

The  sole  legal  test  in  the  Federal  courts,  of  a  confession  is, 
whether  the  same  was  free,  voluntary,  and  without  compulsion 
or  inducement  of  any  kind.  The  fact  that  a  confession  was  made 
while  the  party  was  under  arrest  is  entirely  immaterial,  but  it 
devolves  upon  the  prosecution  to  show  that  the  confession  was 
voluntary.  The  authorities  conflict  somewhat  as  to  whether  the 
Court  or  the  jury  shall  determine  this  question.  The  better  au- 
thority seems  to  be  that  the  Court  shall  determine  it,  because, 
manifestly,  the  admission  of  a  confession  to  a  jury,  under  the 
thought  and  instruction  that  it  must  determine,  first,  whether 
the  same  was  voluntary  before  they  can  give  it  consideration, 
would  be  entirely  inadecpiate  to  sufficiently  safeguard  the  inter- 
est of  the  defendant.  At  page  588  of  Bishop's  Criminal  Pro- 
cedure, that  authority  holds  that  the  prosecution,  in  making  the 


38     GENERAL  PROVISIONS  APPLICABLE  TO  TJLE  PRACTICE 

opening  statement  to  the  jury,  should  not  make  any  detailed 
statements  that  show  a  confession  to  have  been  made,  for  the 
reason  that  the  admissibility  of  such  confession  must  first  be 
passed  upon  by  the  Court.  At  page  619  of  the  same  volume,  the 
same  author  again  annoimces  that  whether  a  confession  is  vol- 
untary or  not  is  to  be  determined  by  the  Court,  and  cites  Ellis 
vs.  State,  65  Miss.,  44;  7  Am.  St.,  634;  State  vs.  Crowson,  98 
N.  C,  595;  Corley  vs.  State,  50  Arkansas,  305;  also  Section  1220 
of  the  First  Volume  of  Bishop's  Criminal  Procedure. 

Underbill  on  Criminal  Evidence,  at  page  161,  paragraph  126, 
says  that  the  preliminary  question.  Was  the  confession  voluntary  ? 
bearing  directly  upon  its  competency  as  evidence,  must  be,  ac- 
cording to  the  majority  of  the  cases,  decided  by  the  Court  as  a 
mixed  question  of  law  and  fact.  This  statement  is  supported  by 
a  long  list  of  authorities,  some  of  which  go  to  the  point  of  holding 
it  error  for  the  Court  not  to  determine  this  question  before  the 
confession  is  submitted  to  the  jury.  From  a  careful  considera- 
tion of  such  authorities,  it  may  be  stated  that  the  weight  of  the 
same  is  for  the  preliminary  determination  by  the  Court  of  this 
question,  before  permitting  the  confession  to  go  to  the  jury. 

In  discussing  the  statement  that  the  prosecution  must  show 
that  the  confession  is  voluntary.  Underbill,  at  page  161-162  of 
his  work  on  Criminal  Evidence,  states  that  many  of  the  cases 
sustain  this  proposition,  and  require  the  state  to  show  by  some 
evidence  that  the  confession  was  freely  and  voluntarily  made, 
but  that  other  authorities  sustain,  at  least  in  the  absence  of  .evi- 
dence to  the  contrary,  the  very  reasonable  theory  that  a  confes- 
sion, like  every  act  or  utterance  which  is  the  result  of  human 
agency,  is  presumed  to  have  been  voluntary  until  the  contrary 
is  shown.  This  latter  view  would  throw  the  burden  of  proving 
that  the  confession  was  involuntary  upon  the  accused ;  but  which 
ever  position  is  right,  the  defendant  is  always  entitled  to  show,  by 
preliminary  evidence,  that  the  confession  was  not  voluntary,  and 
it  is  the  duty  of  the  Court,  in  determining  the  competency  of  the 
confession,  not  only  to  consider  the  evidence  of  the  state,  but  the 
evidence  elicited  by  the  accused  in  his  favor,  as  well.  In  State 
vs.  Fidment,  35  Iowa,  545;  Rufer  vs.  State,  25  Ohio,  464;  State 
vs.  Miller,  42  La.,  1186;  Simmons  vs.  State,  61  Miss.,   243;  Com- 


GENERAL  PROVISIONS  APPLICABLE   TO  THE  PRACTICE     39 

monwealtli  vs.  Culver,  126  Mass.,  464;  State  vs.  Kinder,  96  Mo., 
548,  the  refusal,  before  the  eonfession  was  admitted,  to  allow 
counsel  for  the  prisoner  to  cross  examine  the  witness  as  to  the 
voluntary  character  of  the  confession,  or  to  allow  the  accused 
to  testify  and  explain  his  mental  condition  when  it  was  made,  or 
to  show  b}^  the  evidence  of  others,  that  it  was  improperly  ob- 
tained, were  reversible  error. 

In  Hopt  vs.  Utah,  110  U.  S..  574,  the  Court  said  that,  "the 
admissibility  of  such  evidence  (confessions)  so  largely  depends 
upon  the  special  circumstances  connected  with  the  confession 
that  it  is  difficult,  if  not  impossible,  to  formulate  a  rule  that  will 
comprehend  all  cases,  as  the  question  is  necessarily  addressed,  in 
the  first  instance,  to  the  judge,  and  since  his  discretion  must  be 
controlled  by  all  attendant  circumstances,  the  Courts  have  wisely 
forborne  to  mark  \\dth  absolute  precision  the  limits  of  admission 
or  exclusion."  This  latter  utterance,  therefore,  is  the  authority 
that  binds  in  the  United  States  Courts. 

It  was  also  said,  in  Wilson  vs.  United  States,  162  U.  S.,  613, 
40  Law  Ed.,  1090.  that  statements  by  an  accused,  not  under  oath, 
voluntarily  made  in  answer  to  questions  of  a  Commissioner,  not 
as  a  confession  of  guilt,  but  as  explanations  to  avert  suspicion 
from  himself,  are  not  inadmissible  because  the  Commissioner 
failed  to  inform  him  that  he  could  have  the  aid  of  counsel,  or  to 
warn  him  that  his  statements  might  be  used  against  him,  or  to 
advise  him  that  he  need  not  answer.  This  reasoning,  of  course, 
finds  its  support  in  the  existence  of  extraneous  facts  which  have 
been  discovered  through  the  statements  of  the  accused,  or  other- 
wise, and  such  statements  are,  therefore,  admissible,  though 
made  involuntarily,  or  though  made  to  conceal  guilt,  and  a  dif- 
ferent rule  relates  to  them  from  that  which  respects  confessions 
which  are  guarded  by  the  great  probability  that  the  prisoner  has 
been  influenced  by  his  expectation  of  punishment  or  of  immunity, 
to  speak  what  is  not  true. 

The  leading  case  respecting  a  judicial  determination  of  what 
is  voluntary  and  what  is  not  vohmtary,  is  the  case  of  Bram  vs. 
United  States.  168  U.  S.,  532.  42  Law  Ed.,  568.  In  that  case, 
the  accused  was  an  officer  of  a  ship  upon  which  a  triple  murder 
had  been  committed.    He  and  a  subordinate  officer  were  placed 


40     GENERAL  PROVISlOiNS  APPLICABLE  TO  THE  PRACTICE 

in  irons,  and  carried  into  port.  The  prisoner  Bram  was  taken 
before  a  detective  at  Halifax,  who  searched  him,  and  stripped 
him,  and  took  what  the  bill  of  exceptions  called  "extraordinary 
liberties"  with  him,  and  thereupon  questioned  him  as  follows: 

"When  Bram  came  into  my  office,  I  said  to  him,  'Bram,  we  are 
trying  to  unravel  this  horrible  mystery.  Your  position  is  rather 
an  awkward  one.  I  have  had  BrowTi  in  this  office,  and  he  made 
a  statement  that  he  saw  you  commit  the  murder. '  He  answered, 
'He  could  not  have  seen  me.  AVhere  was  he?'  I  said,  'He 
states  he  was  at  the  wheel.'  'Well,'  said  he,  'he  could  not  see 
me  from  there.'  I  said,  'Now  look  het-e,  Bram,  I  am  satisfied 
that  you  killed  the  Captain  from  all  I  have  heard  from  Brown, 
but,'  I  said,  'some  of  us  here  think  you  could  not  have  done  all 
that  crime  alone.  If  you  had  an  accomplice,  you  should  say  so, 
and  not  leave  the  blame  of  this  horrible  crime  on  your  own 
shoulders.'  He  said,  'Well,  I  think,  and  many  others  on  board 
the  ship  think,  that  Brown  is  the  murderer,  but  I  don't  know 
anything  about  it. '    He  was  rather  short  in  his  replies. ' ' 

Because  of  the  admission  of  this  testimony  or  confession,  the 
Supreme  Court  of  the  United  States  reversed  the  judgment  of 
conviction,  and  granted  a  new  trial.  Compendiously  stated,  the 
rulings  upon  the  same,  by  that  Court,  were  as  follows:  The  use 
which  was  made  of  the  prisoner's  statement  precludes  the  prose- 
cution from  saying  that  it  was  not  used  to  his  prejudice,  and 
after  so  using  the  testimony  the  prosecution  will  not  be  heard  to 
assert  that  the  confession  w^as  not  prejudicial,  because  it  did  not 
tend  to  prove  guilt.  The" sole  question  with  reference  to  the  vol- 
untary character  of  an  alleged  confession  depends  on  whether  the 
making  of  the  statement  was  voluntarj^  and  without  inducement 
or  compulsion,  and  not  whether  the  particular  communications 
contained  in  it  were  vohmtary  or  not.  The  mere  fact  that  a  con- 
fession is  made  to  a  police  officer  while  the  accused  is  under 
arrest,  in  or  out  of  prison,  or  is  draA\Ti  out  by  his  questions,  does 
not  necessarily  render  a  confession  involuntary,  but,  as  one  of 
the  circumstances,  such  imprisonment  or  interrogation  may  be 
taken  into  account  in  determining  whether  or  not  the  statements 
made  by  the  prisoner  are  voluntary. 

The  above  decision  is  cited  and  applied  in  Sorenson  vs.  Uni- 
ted States,  143  Federal,  820,  by  the  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit,  to  the  protection  of  a  defendant  from  the 


GENERAL  PROVISIONS  APPLICABLE   TO  THE  PRACTICE     41 

use  of  a  confession  which  was  secured  from  him  by  a  Post-Office 
Inspector,  who  had  advised  the  defendant  that  he,  the  Inspector, 
had  an  absolutely  good  case  against  him  for  robbing  the  post- 
office,  and  advised  him  that  the  thing  for  him  to  do  was  to  plead 
guilty  and  throw  himself  on  the  mercy  of  the  Court,  and  that 
by  doing  so,  the  offense  against  the  State  laws  would  probably 
be  overlooked. 

It  may  be  stated,  therefore,  as  a  general  proposition,  that  the 
sole  question  for  determination  in  the  Federal  practice,  is, 
whether  the  confession  was  voluntary, — that  is,  made  without 
inducement  or  offer  or  promise  of  any  sort. 

§  21.  Admissibility  of  Documentary  Evidence  Secured  Illegally. 
— In  line  with  the  thought  that  we  have  been  pursuing  is  the 
inquiry  as  to  whether  documentary  evidence,  letters,  papers,  etc., 
secured  in  violation  of  the  Constitutional  provision  guarantee- 
ing the  private  citizen  against  illegal  searches  and  seizures,  can 
be  used  in  evidence  against  the  party  from  whom  they  were  so 
secured.  The  case  of  Adams  vs.  New  York,  192  U.  S.,  586,  48 
Law  Ed.,  577,  by  the  Supreme  Court,  holds  that  the  admissibility 
of  documentary  evidence,  tending  to  establish  the  guilt  of  an 
accused  of  the  offense  charged,  is  not  affected  because  it  was  se- 
cured in  violation  of  the  prohibition  against  unreasonable 
searches  and  seizures,  and  the  self-incrimination  of  an  accused  is 
not  affected  by  the  introduction  in  evidence  against  him  of  cer- 
tain private  papers  foimd  in  the  execution  of  a  search  warrant, 
where  he  did  not  take  the  witness  stand  in  his  own  behalf,  as 
was  his  privilege,  and  was  not  compelled  to  testify  concerning 
the  papers  or  make  any  admission  about  them.  This  w^as  a  case 
that  originated  imder  the  gambling  paraphernalia  statute  of 
New  York  City,  and  the  officers,  armed  with  a  search  warrant 
under  that  statute,  secured  certain  private  papers  that  were  not 
called  for,  nor  included,  in  the  search  warrant,  but  which  were 
decidedly  damaging  testimony  against  the  defendant,  and  upon 
this  state  of  facts  the  direct  question  above  suggested  was  passed 
upon.  The  Supreme  Court  lays  down  the  rule  in  the  following 
terms,  quoting  from  Greenleaf.  Volume  1,  Paragraph  254-a: 

"It  may  be  mentioned  in  this  place  that  though  papers  and 
other  subjects  of  evidence  may  have  been  illegally  taken  from 


42     GENERAL  PROVJ SIGNS  APPLICABLE  TO  THE  PRACTICE 

the  possession  of  the  party  against  whom  they  are  offered,  or 
otherwise  unlawfully  obtained,  this  is  no  valid  objection  to  their 
admissibility,  if  they  are  pertinent  to  the  issue.  The  Court  will 
not  take  notice  how  they  were  obtained,  whether  lawfully  or  un- 
lawfully, nor  will  it  form  an  issue  to  determine  that  question. 
....  Evidence  which  is  pertinent  to  the  issue  is  admissible,  al- 
though it  may  have  been  procured  in  an  irregular,  or  even  in  an 
illegal  manner.  A  trespasser  may  testify  to  pertinent  facts  ob- 
served by  him,  or  may  put  in  evidence  pertinent  articles  or 
papers  found  by  him  while  trespassing.  For  the  trespass,  he 
may  be  held  responsible  civilly,  and  perhaps  criminally,  but  his 
testimony  is  not  thereby  rendered  incompetent." 

§  22.  Comments  or  Improper  Argument  of  District  Attorney. — 
Too  much  care  cannot  be  given  by  counsel  to  words  they  use  in 
addressing  the  jury.    Attorneys  for  the  prosecution  and  the  de- 
fense should  be  jealous  indeed  to  guard  themselves  from  remarks 
that  are  unsupported  by  the  testimony,  or  that  are  individual 
opinions  rather  than  legitimate  deductions  from  the  law  and  the 
evidence.    One  of  the  abuses  of  the  modern  practice  is  the  prone- 
ness  of  the  attorneys  defending  to  express  unbounded  belief  in 
the  innocence  of  their  client,  even  to  the  staking  of  personal  rep- 
utation.    Great  censure  also  is  due  the  prosecution  for  intem- 
perate and  immoderate  expressions,  due  ofttimes  to  the  vehe- 
mence of  opposing  counsel  but  never  excused.     The  only  rem- 
edy the  prosecuting  officer  has  against  such  unfair  argument  is 
to  appeal  to  the  trial  judge.     Defending  counsel  can  save  the 
point  by  bill  of  exception,  and  present  the  language  of  the  pros- 
ecuting officer  to  the  appellate  court  for  review.     Trial  judges 
should,  therefore,  be  extremely  careful  to  enforce,  by  proper 
ruling,  not  prejudicial  to  the  interests  of  the  prosecution  or  the 
rights  of  the  defendant,  a  fair  argument,  devoid  of  personal 
opinions,  and  as  free  from;  prejudicial  and  inciting  statements 
as  fair  discussion  will  permit.     In  the  case  of  Williams  against 
the  United  States,  168  U.  S.,  382,  the  defendant  was  convicted 
of  extortion  in  exacting  money  from  Chinese  immigrants  for 
permission  to  land  and  remain  in  the  United  States.     The  de- 
fendant proposed  to  show  by  witnesses  that  while  he  was  acting 
in  such  official  position,  there  were  more  females  sent  back  to 
China  than   ever  were  sent  back  before  or  after.     The  repre- 


(iENERAL  PHO\iSlOi\'S  APPLICABLE   TO  THE  PRACTICE     4;^ 

sentative  of  the  government  objected  to  this  evidence,  as  irrele- 
vant, saying  in  open  court,  and  presumably  in  the  hearing  of  the 
jury :  ' '  No  doubt  every  Chinese  woman  who  did  not  pay  Will- 
iams was  sent  back. ' '  The  Supreme  Court  said :  ' '  The  observa- 
tion made  by  the  prosecuting  attorney  was,  under  the  circum- 
stances, highly  improper,  and  not  having  been  withdrawn,  and 
the  objections  to  it  being  overruled  by  the  Court,  it  tended  to 
prejudice  the  rights  of  the  accused  to  a  fair  and  impartial  trial. ' ' 
In  Hall  against  the  United  States,  150  U.  S.,  76,  a  judgment 
of  the  trial  Court  was  reversed,  because  the  District  Attorney 
was  permitted  to  make  an  argument,  against  the  objection  of 
the  defendant,  not  based  on  evidence,  which  tended  to  prejudice 
the  jury  against  the  defendant.  See  also  People  vs.  Mull,  167 
N.  Y.,  247.  In  the  case  of  Lowdon  against  the  United  States, 
149  Fed.,  677,  this  question  was  raised:  The  attorneys  for  the 
defendant  had  insisted  that  six  men  could  not  return  a  verdict, 
nor  could  eleven ;  that  it  required'  twelve.  The  District  Attor- 
ney, in  answering  that  argument,  said  in  substance  that  it  was 
true  that  six  could  not  return  a  verdict,  nor  could  eleven,  and, 
that,  as  matter  of  fact,  it  did  take  twelve;  but  that  he  would 
hate  to  be  the  obstinate  juror,  for  fear  when  he  returned  home, 
his  friends  and  neighbors,  who  possibly  were  not  versed  and 
familiar  with  the  various  technicalities  and  intricacies  of  the 
law  might  conclude  that  the  jingle  of  the  broken  banker's  un- 
lawful and  illy  gotten  gold  in  his  pocket  had  influenced  his 
action.  The  Court,  in  that  case,  held  that  the  argument  was 
improper,  and  said:  "We  would  not  embarrass  free  discussion, 
so  essential  to  proper  administration  of  the  law.  We  would  not 
regard  many  hasty  but  exaggerated  expressions  of  attorneys 
made  in  the  heat  of  debate,  which  are  not  expected  to  become 
factors  in  the  formation  of  the  verdict.  We  wish  to  follow  es- 
tablished rules,  and  to  avoid  introducing  another  element  of 
uncertainty  in  the  trial  of  criminal  cases  by  making  a  new  prece- 
dent for  the  reversal  of  judgments.  The  difficulty  of  drawing  a 
line  between  legitimate  and  improper  arguments  admonishes  us 
that  the  trial  judge  often  has  a  delicate  and  difficult  task  im- 
posed on  him ;  but,  under  the  circumstances  of  this  case,  consid- 
ering the  character  of  argument,  the  refusal  of  the  trial  judge 


44     GENERAL  PROVISIONS  APPLICABLE  TO  THE  PRACTICE 

to  interfere  at  the  time  the  objection  was  interposed,  or  to  cor- 
rect the  probable  effect  of  the  argument  by  a  subsequent  instruc- 
tion, and  because  it  does  not  appear  affirmatively  to  us  that  no 
injury  was  done  to  the  defendants,  we  are  constrained  to  hold 
that  the  judgment  should  be  reversed  and  a  new  trial  granted. 
See  also  Allen  vs.  United  States,  115  Fed.,  p.  4. 

So,  also,  the  District  Attorney  may  not  comment  in  argument 
upon  the  failure  of  the  defendant  to  offer  evidence  of  his 
previous  good  character.  McKnight  vs.  United  States,  97  Fed., 
208;  Bennet  vs.  State,  86  Ga.,  401;  Davis  vs.  State,  138  Ind.,  11; 
Fletcher  vs.  State,  49  Ind.,  124;  Thompson  vs.  State,  92  Ga., 
448;  the  People  vs.  Evans,  72  Mich.,  367;  Lowdon  vs.  U.  S.,  149 
F.,  677. 

Neither  can  the  defendant,  by  questions,  be  compelled  to  dis- 
close evidence  against  himself,  as,  for  instance,  he  cannot  be 
asked  to  produce  the  original,  else  a  certified  copj^  will  be  per- 
mitted.   McKnight  vs.  United  States,  115  Fed.,  972. 

See  U.  S.  vs.  Snyder,  14  F.,  554,  where  District  Attorney  com- 
ments on  failure  of  defendant  to  testify  in  his  own  behalf.  See 
also  Dimmiek  vs.  U.  S.,  121  Fed.,  638. 

§  23.  Having  already  noticed  something  of  the  latitude  per- 
mitted the  District  Attorney  or  prosecution  in  argument  before 
the  trial  jury,  it  will  not  be  out  of  place  to  call  attention  to  the 
limits  within  which  the  prosecuting  officer  must  work  in  the 
grand-jury  room  in  seeking  an  indictment  or  presenting  evi- 
dence to  the  grand  jury  upon  which  he  expects  an  indictment 
to  be  returned.  In  United  States  vs.  Wells,  163  Federal.  313, 
Judge  "Whitson  reviews,  at  some  considerable  length,  authorities 
along  this  line,  and  from  that  opinion  may  be  deduced  the  fol- 
lowing rules  and  limits : — The  District  Attorney  has  no  right  to 
participate  in,  nor  be  present,  during  the  deliberations  of  a 
grand  jury,  nor  to  express  opinions  on  questions  of  fact,  or  as 
to  the  weight  and  sufficiency  of  the  evidence.  The  District  At- 
torney should  not  comment  upon  and  review  the  evidence  and 
apply  the  law  thereto  for  the  purpose  of  securing  an  indictment. 
He  should  not  express  an  opinion  that  the  defendants  are  guilty. 
and  that  the  grand  jury  should  return  an  indictment  against 
them.    He  should  not  be  present  while  the  jury  is  balloting  upon 


GENEEAL  PROVISIONS  APPLICABLE   TO  THE  PRACTICE     45 

the  persons  under  investigation ;  and  Avhile  the  mere  presence  of 
the  prosecutor  during  the  taking  of  a  vote,  through  inadvertence, 
and  without  intending  to  influence  any  action,  is  not  necessarily 
fatal  to  a  bill,  yet  where  the  prosecutor  expresses  his  opinion  and 
urges  the  finding  of  an  indictment,  it  is  clearly  shown  that  the 
grand  jury  must  have  been  influenced  thereby,  and  an  indict- 
ment so  returned  will  be  quashed. 

§  24.  Jury. — The  right  of  trial  by  jury  is  the  most  priceless 
boon  enjoyed  by  the  people  under  any  government.  Text-book 
writers,  newspaper  writers,  politicians,  and  theorists  may  thun- 
der as  they  will  against  the  miscarriages  of  justice  from  the  jury- 
box;  the  system  is  not  only  established  for  all  time,  but  is  as 
necessary  as  a  bill  of  rights.  No  judge,  however  learned,  no  set 
of  judges,  however  impartial,  can  approximate  the  justice  that 
is  found  and  dispensed  by  the  layman  juror.  A  mind  trained 
in  the  law,  or  in  any  other  science  or  profession,  holding  the 
utmost  purity  of  thought,  is  still  short  of  an  ability  to  appre- 
ciate and  weigh  justly  the  motives  that  actuate  those  who  are 
permanently,  or  occasionally,  or  unfortunately  only  once, 
charged  with  crime  or  offense.  The  very  people  with  whom  the 
unfortunate  walked,  and  the  very  people  who  suffered  or  won 
as  the  unfortunate  suffered  or  won  understand  best  the  power 
that  makes  or  unmakes  an  intent  of  the  human  heart.  That  the 
Federal  judge  is  permitted  to  give  expression  to  his  opinion  to 
the  jury  is  no  argument  for  the  abolition  of  the  jury.  The  jury- 
is  strong,  because  it  has  twelve  men  on  it,  and,  therefore,  twelve 
sets  of  different  opinions,  and  the  addition  of  a  judge's  opinion, 
coupled  with  the  statement  that  such  opinion  is  not  to  influence 
or  bind  any  member  of  the  jury,  but  strengthens  the  desire  upon 
the  part  of  the  individual  jurors  to  think  for  themselves,  and 
thus  bring  to  bear  the  best  thought  for  the  determination  of  the 
human  problem  upon  which  they  sit.  Not  the  least  part  of  the 
gloriousness  of  American  jurisprudence  and  court  history  is 
due  to  the  fact  that  the  American  court,  appellate  or  supreme, 
views  with  sacredness  and  honor  the  verdict  of  the  jury,  and 
only  for  well-laiown  reasons  will  there  be  a  disturbance  of  the 
same.  The  latitude  given  the  Federal  judge  in  the  matter  of 
his  charge  is  to  be  entered  with  great  care.     The  cream  of  the 


46     GENEHAL  PEOVISIONS  .APPLICABLE  TO  THE  PRACTICE 

decisions  seems  to  indicate  that  a  judge  should  never  permit  the 
jury  to  know  just  what  he  thinks  individually  of  the  guilt  or 
innocence  of  the  party  on  trial,  but  that  he  may  indicate,  by  in- 
structions or  otherwise,  his  opinion  upon  a  particular  piece  of 
evidence,  so  that  the  truth  or  falsity  of  that  particular  testimony 
may  be  determined  with  as  much  ease  as  possible  by  the  jury, 
it  being  the  object  of  a  Court  to  ascertain  the  truth,  and  to  seek 
every  light  possible  that  will  assist  in  finding  just  where  the  truth 
in  fact  does  lie.  The  Constitution  of  the  United  States  provides 
for  trials  by  jury,  as  do  also  the  Amendments,  which  have  been 
denominated  by  the  Supreme  Court  and  by  great  thinkers  as  the 
bill  of  rights  of  the  American  people.  Congress  has  provided, 
in  the  Revised  Statutes,  for  jury  trials  in  both  the  Circuit  and 
District  Courts  of  the  United  States,  and  has  authorized  the 
waiving  of  a  jury  in  the  trial  of  civil  cases  in  the  Circuit  Court, 
but  has  not  authorized  the  waiving  of  a  jury  in  the  trial  of  civil 
cases  in  the  District  Court.  United  States  vs.  St.  Louis  Rail- 
way Company,  169  Fed.,  73;  Low  vs.  United  States,  169  Fed.,  86. 
It  is  quite  certain  that  a  jury  cannot  be  waived  by  one  who  is 
charged  with  a  felony,  and  it  seems  that  the  great  weight  of 
authority  is  against  the  permission  of  a  waiver  of  a  trial  by 
twelve  jurors  when  the  crime  is  infamous  or  a  high  misdemeanor. 
In  Dickinson  vs.  United  States,  159  Federal,  page  801,  the  Cir- 
cuit Court  of  Appeals  for  the  First  Circuit,  speaking  through 
Judge  Putnam,  reviews  the  American  authorities  with  reference 
to  the  waiver  of  one  on  trial  of  his  right  to  be  tried  by  a  jury 
of  twelve,  when  one  of  the  originally  selected  twelve  becomes 
ill  or  from  other  cause  must  be  excused.  In  that  particular  case, 
the  juror  who  became  ill  was  excused  by  consent,  which  consent 
was  in  writing  of  both  the  defendant  and  his  counsel.  The  case 
being  tried  was  one  denominated  by  the  Federal  statutes  as  a 
misdemeanor,  which,  however,  under  the  new  Code,  is  infamous, 
because  the  punishment  was  penitentiary.  In  that  case,  the 
majority  of  the  Court  holds  that  the  second  Section  of  Article 
III.  of  the  Constitution  demands  a  trial  by  jury,  and  that 
Thompson  vs.  Utah.  170  U.  S.,  343,  has  authoritatively  deter- 
mined that  a  jurv^  for  a  criminal  cause  is  to  consist  of  twelve 
men.  and  that  the  Amendments  to  the  Constitution  relating  to 


GENEEAL  PEOVISIONS  APPLICABLE   TO  THE  PKACTICE     47 

jury  trial  do  not  in  any  measure  explain  or  abrogate  or  lighten 
the  second  Section  of  the  original  Article  III.,  and  that  in  the 
trial  of  criminal  cases,  not  only  the  defendant  is  interested  in 
the  maintenance  of  Constitutional  guarantees,  but  that  the  peo- 
ple themselves  are  interested  and  concerned. 

It  is  true  that  District  Judge  Aldrich,  in  the  foregoing  opin- 
ion, dissents,  and  in  a  well-reasoned  and  authority-supported 
paper;  but  one  cannot  well  escape  the  force  of  the  suggestion 
that  if  a  defendant  may  waive  one  and  be  tried  by  eleven,  why 
could  he  not  waive  eleven  and  be  tried  by  one.  The  safe  rule, 
therefore,  for  all  District  Attorneys  is,  to  see  that  there  is  a  full 
panel,  and  if  sickness  or  other  unavoidable  interference  causes 
the  judge  to  excuse  a  member  of  a  jury,  that  the  trial  then  be 
discontinued  and  begun  all  over  again  before  the  regulation 
number.  I  have  no  doubt  that  a  defendant  and  his  counsel  may 
consent  in  writing  and  bind  themselves  in  writing  as  strongly 
as  a  document  can  be  worded,  and  yet,  in  the  event  of  conviction, 
successfully  raise  the  point  by  way  of  motion  in  arrest  of  judg- 
ment, and  cause  a  reversal  of  the  case.  Dickinson  vs.  United 
States,  159  Fed.,  809. 

The  case  of  Schick  vs.  United  States,  195  U.  S.,  65,  and  the 
case  of  Callan  vs.  Wilson,  in  127  U.  S.,  549,  are  discussed  and 
differentiated  in  the  Dickinson  case,  cited  supra ;  and  while  the 
Schick  and  the  Callan  cases  are  relied  upon  as  authority  by  Dis- 
trict Judge  Aldrich  in  his  dissent,  the  majority  opinion  seems 
better  founded,  and  I  would  coimsel  the  following  of  the  Dick- 
inson case  until  the  same  is  expressly  overruled  by  higher  au- 
thority.    See  also  4  Fed.  Statutes,  p.  391. 

§  25.  Care  of  Jury. — Text-book  writers,  judges,  and  statute 
makers  cannot  well  formulate  rules  with  reference  to  the  care 
of  juries  that  can  be  invariably  followed.  Under  most  jurisdic- 
tions, jurors  in  the  trial  of  criminal  cases  are  kept  together  and 
not  permitted  to  separate,  being  under  the  constant  surveillance 
of  bailiffs  or  deputies.  This  care  and  espionage  of  the  jury  is 
not  necessarily  due  to  the  distrust  of  the  jury  itself,  but  is  oft- 
times  considered  as  a  right  belonging  to  the  jury.  When  that 
body  has  returned  its  verdict,  no  one  should  question  its  sin- 
cerity, honesty,  and  cleanness,  and  everv  safeguard  that  keeps 


48     GENERAL  PROVISIONS  APPLICABLE  TO  THE  PRACTICE 

the  jury  from  unauthorized  and  outside  persons,  thereby  making 
improper  advances  impossible  and  improbable,  lends  weight  and 
force  and  purity  to  its  verdict,  and  thus  tends  to  convince  the 
most  common  mind  of  the  righteousness  of  the  ultimate  con- 
clusion. It  is  not  alone  necessary  to  avoid  evil — the  thoughtful 
man  avoids  the  appearance  even  thereof.  Newspapers,  letters, 
conversations  with  outsiders,  telephone  messages,  and  telegrams 
should  all  alike  be  kept  from  the  jury,  or  else  go  to  the  jury 
under  the  surveillance  of  the  Court. 

In  Marrin  vs.  United  States,  167  Federal,  951,  the  Court 
refused  to  set  aside  a  verdict  upon  a  motion  made  by  the  defend- 
ant to  the  effect  that  newspapers  relating  to  the  case  had  been 
read  by  the  jurors  during  the  trial;  and  while  the  facts  disclose 
that  the  jurors  themselves  testified  that  they  w^ere  not  influenced 
by  the  newspaper  statements,  yet  it  does  seem  that  w^e  would 
have  felt  a  great  deal  better  had  there  been  no  such  case  re- 
ported. Of  course,  after  a  juror  has  rendered  his  verdict,  he  is 
slow  to  answer  that  any  part  thereof  was  shaped  or  rendered 
or  assisted  by  anything  that  he  may  have  read  in  a  newspaper. 
It  is  a  safer  plan  to  keep  the  papers  from  the  jury,  and  if  pre- 
judicial articles  do  come  into  the  hands  of  the  jury  and  this 
fact  be  ascertained  by  the  Court,  the  jury  should  be  discharged, 
or,  if  the  fact  is  not  known  until  after  the  verdict,  then  a  new 
trial  should  be  granted,  unless  it  clearly  appears  that  no  preju- 
dice was  worked  to  the  defendant.  In  the  case  of  Callahan  vs. 
Chicago,  158  Federal,  988,  the  Court  held  that  he  would  not 
permit  the  jurors  to  testify  to  the  effect  upon  themselves  of  an 
attempt  made  to  influence  their  verdict.  They  were  permitted 
to  testify  to  any  facts  showing  attempts  of  others  to  improperly 
influence  their  verdict,  but  it  is  for  the  Court  to  determine 
whether  or  not  the  attempts  shown  are  of  a  character  that  the 
verdict  may  have  been  improperly  influenced  thereby. 

§  26.  Evidence  of  Good  Character. — If  there  be  a  difference  in 
the  rule  of  evidence  as  adopted  by  the  various  appellate  Courts 
of  the  different  states,  respecting  the  admission  of  testimony  as 
to  the  good  character  of  the  defendant,  the  rule  in  the  United 
States  Courts,  as  outlined  in  the  case  of  Edgington  vs.  United 
States,  164  IT.  S..  361  ;  41  Law  Ed.,  467,  is  thrtt  evidence  of  a 


GENEEAL  PROVISIONS  APPLICABLE   TO  THE  PRACTICE     49 

defendant's  general  reputation  for  truth  and  veracity  is  admis- 
sible on  a  prosecution,  not  merely  to  give  weight  to  his  personal 
testimony  in  the  case,  but  to  establish  a  general  character  incon- 
sistent with  guilt,  whether  he  has  testified  or  not ;  and  a  charge 
to  the  jury  that  if  they  have  hesitancy  as  to  the  defendant's 
guilt,  then  they  may  consider  as  important  the  testimony  as  to 
his  good  character,  is  erroneous,  as  limiting  the  effect  of  such 
testimony  to  a  doubtful  case.  The  identical  language  of  the 
Court  upon  this  question  is  as  follows  = 

"It  is  not  necessary  to  cite  authorities  to  show  that  in  crim- 
inal prosecutions  the  accused  will  be  allowed  to  call  witnesses  to 
show  that  his  character  was  such  as  would  make  it  unlikely  that 
he  would  be  guilty  of  the  particular  crime  with  which  he  is 
charged;  and  as  here  the  defendant  was  charged  with  a  species 
of  crimen  falsi,  the  rejected  evidence  was  material  and  compe- 
tent  It  is  impossible,  we  think,  to  read  the  charge  without 

perceiving  that  the  leading  thought  in  the  mind  of  the  learned 
judge  was  that  evidence  of  good  character  could  only  be  con- 
sidered if  the  rest  of  the  evidence  created  a  doubt  of  defendant's 
guilt.  He  stated  that  such  evidence  'is  of  value  in  conflicting 
cases,'  and  that  if  the  mind  of  the  jury  'hesitates  on  any  point 
as  to  the  guilt  of  the  defendant,  then  you  have  the  right  and 
should  consider  the  testimony  given  as  to  his  good  character.' 
Whatever  may  have  been  said  in  some  of  the  earlier  cases  to  the 
effect  that  evidence  of  the  good  character  of  the  defendant  is 
not  to  be  considered  unless  the  other  evidence  leaves  the  mind  in 
doubt,  the  decided  weight  of  authority  now  is  that  good  char- 
acter, when  considered  in  connection  with  the  other  evidence  in 
the  case,  may  generate  a  reasonable  doubt.  The  circumstances 
may  be  such  that  an  established  reputation  for  good  character, 
if  it  is  relevant  to  the  issue,  would  alone  create  a  reasonable 
doubt,  although  without  it,  the  other  evidence  would  be  con- 
vincing. ' ' 

§  27.  Instructions  of  the  Court. — Section  722  of  the  Revised 
Statutes  of  the  United  States  do  not  in  any  measure  bind  the 
Federal  Judge  in  the  method  or  form  of  the  instructions  he  de- 
livers to  the  jury.  The  statutes  and  decisions  of  the  state  within 
which  he  holds  his  Court  are  not  binding  upon  him  in  the  matter 
of  procedure  in  criminal  cases,  and  he  may  deliver  a  written  or 
an  oral  charge  as  he  sees  fit.  In  re  Stupp,  12  Blatchf.,  509 ;  U. 
S.  vs.  Egan,  30  Fed.,  608.     The  personal  conduct  and  admini's- 


50     GENERAL  PEOVISIONS  APPLICABLE  TO  THE  PEACTICE 

tration  of  the  judge  in  the  discharge  of  his  separate  functions 
is  neither  practice,  pleading,  nor  a  form  nor  mode  of  procedure 
within  the  meaning  of  the  statute,  and  a  state  statute  regulating 
the  manner  in  which  the  Court  shall  charge  the  jury  is  not 
within  this  statute.  4  Fed.  Statute.  567 ;  Mudd  vs.  Burrows,  91 
U.  S.,  441;  Indianapolis,  etc.,  vs.  Horst,  93  U.  S.,  300;  Grimes 
Dry  Goods  Co.,  vs.  Malcolm,  164  U.  S.,  490;  Lincoln  vs.  Power, 
151  U.  S.,  442;  U.  S.  Mutual  Association  vs.  Barry,  131  U.  S. 

In  Tennessee  vs.  Davis,  100  U.  S.,  257,  the  Court  held  with 
reference  to  Section  722,  that,  "examined  in  the  most  favorable 
light,  the  provision  is  a  mere  jumble  of  Federal  Law,  Common 
Law,  and  State  Law,  consisting  of  incongruous  and  irreconcil- 
able regulations,  which,  in  legal  effect,  amount  to  no  more  than 
a  direction  to  a  judge  sitting  in  such  a  criminal  trial  to  conduct 
the  same  as  well  as  he  can,  in  view  of  the  three  systems  of  crim- 
inal jurisprudence,  without  any  suggestion  whatever  as  to  what 
he  shall  do  in  such  an  extraordinary  emergency,  should  he  meet 
a  question  not  regulated  by  any  one  of  the  three  systems."  At 
Common  Law,  it  is  entirely  within  the  discretion  of  the  trial 
judge  whether  instructions  to  the  jury  shall  be  in  writing;  and 
in  the  absence  of  statutes  providing  otherwise,  the  whole  charge 
may  be  delivered  orally,  and  the  action  of  the  trial  judge  in  so 
doing  will  not  be  reviewable  on  appeal  or  error.  Smith  vs. 
Crichton,  33  Maryland,  103;  Baer  vs.  Rooks,  50  Fed.,  898;  Gulf 
Ry.  Co.  vs.  Campbell,  49  Fed.  354. 

The  most  careful  way,  however,  is  in  writing,  and  there  is 
little  doubt  that  any  judge,  upon  proper  request,  would  gladly 
charge  the  jury  in  writing.  If  special  instructions  be  desired, 
they  must  be  requested  in  writing  before  the  retirement  of  the 
jury,  and  the  best  practice  is  to  give  them  to  the  judge  before 
he  delivers  his  charge.  All  exceptions  to  the  Court's  charge 
must  be  in  open  Court,  and  before  the  jury  retires,  and  no  bill 
will  be  granted,  unless  such  action  is  taken. 

§  28.  Opinion  of  Court. — A  long  line  of  decisions  supports  be- 
yond contradiction  the  right  and,  under  some  circumstances, 
even  the  duty  of  the  judge  to  expreSvS  his  opinion  upon  the  testi- 
mony, which  expression,  in  most  state  jurisdictions  would  be  a 
charge  upon  the  weight  of  the  evidence,  and,  therefore,  revei'sible 


GENERAL  PROVISIONS  APPLICABLE   TO  THE  PRACTICE     51 

error ;  but  it  is  well  settled  that  the  Federal  judge  has  this  right. 
In  Simmons  vs.  United  States,  142  U.  S.,  148,  the  Court  said: 
"It  is  so  well  settled  by  a  long  series  of  decisions  of  this  Court 
that  the  judge  presiding  at  a  trial,  civil  or  criminal,  in  any 
Court  of  the  United  States,  is  authorized,  whenever  he  thinks  it 
will  assist  the  jury  in  arriving  at  a  just  conclusion,  to  express 
to  them  his  opinion  upon  the  questions  of  fact,  which  he  submits 
to  their  determination,  that  it  is  only  necessary  to  refer  to  a  few 
cases;  namely,  Vicksburg,  etc.,  vs.  Putnam,  118  U.  S.,  545; 
United  States  vs.  Philadelphia  Company,  123  U.  S.,  113;  Love- 
joy  vs.  United  States,  128  U.  S.,  171."  These  decisions  have  been 
followed  repeatedly.  Sebeck  vs.  Plattseutsche,  124  Federal,  18 ; 
Ching  vs.  United  States,  118  Fed.,  543.  In  the  Ching  case,  the 
Court  held  that  it  was  not  error  for  the  trial  judge  to  express 
an  opinion  as  to  what  the  verdict  should  be,  if  afterward  he 
qualified  his  statements,  and  in  Breese  vs.  United  States,  106 
Fed.,  686,  it  was  held  that  an  expression  of  the  judge  that  the 
defendant  is  guilty  was  not  error,  he  having  cautioned  the  jury 
that  they  were  the  sole  judges,  and  that  his  opinion  should  not 
govern.  See  also  Doyle  vs.  Union  Pacific  R.  R.  Co.,  147  U.  S., 
430;  Allis  vs.  United  States,  155  U.  S.,  123;  Wiborg  vs.  United 
States,  163  U.  S.,  556;  Woodruff  vs.  U.  S.,  58  Fed.,  767;  Spurr 
vs.  U.  S.,  87  Fed..  708;  Hart  vs.  U.  S.,  84  F.,  799;  Smith  vs.  U. 
S..  157  F.,  722. 

§  29.  Court  Cannot  Comment  on  Lack  of  Evidence. — One  well 
marked  limitation  is  that  pointed  out  in  Mullen  vs.  United 
States,  106  Fed.,  892,  in  a  decision  by  the  Circuit  Court  of  Ap- 
peals for  the  Sixth  Circuit,  which  holds  in  substance  that  where 
no  testimony  has  been  offered  as  to  the  previous  good  character 
of  the  accused,  the  presumption  of  such  good  character  exists  in 
favor  of  the  accused,  of  which,  upon  a  request  to  that  effect,  a 
jury  should  be  instructed,  and  the  Supreme  Court,  in  Coffin 
against  United  States,  156  U.  S.,  432,  having  said  that  the  pre- 
sumption of  innocence  stands  as  evidence  in  favor  of  the  accused, 
as  does  also  the  presumption  of  good  character  stand  as  evidence. 
Such  presumptions  existing  it  is  the  duty  of  the  Court  to  let 
the  jury  loiow  of  such  presumptions,  and  it  was,  therefore,  error 
for  the  trial  judge  to  tell  the  jury  that  the  defendants,  whether 


52     GENERAL  PROVISIONS  APPLICABLE  TO  THE  PRACTICE 

of  good  character  or  bad  character,  were  presumed  to  be  inno- 
cent, because  the  law  presumed  them  to  be  of  good  character, 

§  30.  Further  Limitations. — In  Hickory  vs.  United  States,  160 
U.  S.,  408,  and  in  Starr  vs.  United  States,  153  U.  S.,  616,  the 
Supreme  Court  said  in  substance  that  where  there  is  sufficient 
evidence  upon  a  given  point  to  permit  the  point  to  go  to  the  jury, 
it  is  the  duty  of  the  judge  to  submit  it  calmly  and  impartially, 
and  if  the  expression  of  an  opinion  upon  such  evidence  becomes 
a  matter  of  duty,  under  the  circumstances  of  the  particular  case, 
great  care  should  be  exercised  that  such  expression  should  be 
so  given  as  not  to  mislead,  and  especially  that  it  should  not  be 
one-sided,  and  all  deductions  and  theories  not  warranted  by  the 
evidence  should  be  studiously  avoided.  See  also  Hicks  vs.  Uni- 
ted States,  150  U.  S..  442. 

Were  there  testimony,  therefore  in  the  record,  touching  the 
question  of  character,  it  would  not  be  error  for  the  judge  to  as- 
sist the  jury  by  such  views  as  he  entertained  respecting  charac- 
ter, its  formation  and  effect,  provided  he  then  leave  the  jury 
free  to  decide  the  disputed  matter  of  fact  for  themselves.  See 
also  McKnight  vs.  United  States.  97  Fed..  210. 

§  31.  Verdict. — A  verdict  in  a  criminal  case  which  finds  the 
defendant  guilty  upon  certain  counts  of  the  indictments  on 
which  the  trial  was  had,  not  guilty  upon  others,  and  which  re- 
ports a  disagreement  as  to  the  remaining  counts,  is  entirely 
proper,  and  it  is  not  error  to  receive  such  verdict  and  to  enter 
judgment  thereon  as  to  the  counts  which  were  finally  disposed 
of.    Dolan  vs.  U.  S..  133  F..  440. 

§  32.  Sentence  and  the  Correction  Thereof. — Certain  sections  of 
Chapter  IX.  of  the  1878  statutes,  relate  to  the  place  and  term  of 
sentence.  Each  Federal  district  is  not  provided  with  a  Federal 
prison,  but  the  statutes  of  all  of  the  states  of  the  Union  provide 
for  the  reception  of  Federal  prisoners  upon  the  payment  terms 
therein  prescribed.  Section  5541  permits  the  Court  to  sentence 
the  prisoner,  if  the  term  be  longer  than  a  year,  to  either  a  jail 
or  a  penitentiary.  In  this  connection,  it  must  be  understood  that 
a  sentence  nnist  be  longer  than  one  year  before  the  Court  can 
direct  that  it  shall  be  sei'ved  in  the  penitentiary.  Haynes  vs. 
United  States.  101   Federal.  817:  iv  re  Bonner.  151   V.  S.,  252. 


GENERAL  PROVISIONS  APPLICABLE  TO  THE  PRACTICE     53 

5542  leaves  it  optional  with  the  Court,  in  imposing  sentence  to 
hard  labor,  as  to  whether  it  shall  be  jail  or  penitentiary. 

There  is  no  direct  Federal  statute  exacting  when  convicted 
prisoners  shall  be  sentenced.  The  authority  for  the  sentence  of 
a  convict,  therefore,  under  the  Federal  system,  must  be  found 
in  the  general  proposition  that  the  Federal  Courts  are  authorized 
to  pronounce  all  decrees  and'  judgments  necessary.  Specific 
penal  statutes,  with  fixed  terms  of  punisliment,  demand,  there- 
fore, sentence  by  the  Court  upon  the  convicted  person. 

§  33.  No  Authority  to  Suspend  Sentence. — For  years,  and  per- 
haps now  in  some  of  the  Districts,  judges  have  suspended  sen- 
tence, when  in  their  opinion  such  action  was  called  for  by  the 
facts  of  the  particular  case.  Such  practice  is,  beyond  question 
it  seems,  the  exercise  of  pardoning  power,  and  the  usurpation 
by  the  judiciary  of  a  power  especiallj^  inhibited  to  them,  and 
belonging  to  an  entirely  different  branch  of  the  Government. 
The  Judge,  in  administering  the  law,  is  as  surely  bounden  to  so- 
ciety that  all  of  its  mandates  shall  be  correctly  observed,  as  he  is 
not  to  lay  the  weight  of  his  finger  im justly  upon  the  defendant. 
In  United  States  vs.  "Wilson,  46  Federal,  748,  Judge  Beatty  de- 
noimced  the  practice,  and  observed,  in  substance,  that  while  there 
was  no  question  of  the  power  and  authority  of  a  Court  to  tem- 
porarily suspend  its  judgment  for  the  purpose  of  hearing  and 
determining  motions  and  other  proceedings  which  may  occur 
after  verdict,  and  which  may  be  properly  considered  before 
judgment,  or  for  any  other  good  reason,  yet  the  suspension  of  a 
judgment  upon  the  good  behavior  of  the  prisoner,  or  for  any 
other  reason  that  is  not  concerned  with  the  case,  is  an  exercise 
of  arbitrary  and  unlawful  power.    He  says: 

"It  operates  as  a  condonation  of  the  offense,  and  an  exercise 
of  a  pardoning  power,  which  was  never  conferred  upon  the 
Court." 

§  34.  Correction  of  Sentence. — Under  Section  5546  and  its 
Amendment,  as  shown  at  page  111,  First  Volume  Supplement, 
the  Attorney  General  of  the  United  States  designates  the  partic- 
ular Federal  penitentiary  to  w^hich  prisoners  from  a  given  dis- 
trict shall  be  sentenced.  These  designations,  because  of  various 
reasons,  must,  from  time  to  time,  be  changed.    Most  of  the  Fed- 


54     GENERAL  PROVISIONS  APPLICABLE  TO  THE  PRACTICE 

eral  statutes  fix  the  maximum  of  the  punishment,  and  leave  it 
discretionary  with  the  Court  to  come  within  such  limits.  Some 
of  the  statutes  carry  hard  labor,  and  some  do  not.  Because  of 
all  these  and  perhaps  other  reasons,  mistakes  are  sometimes  made 
by  the  Court,  and  sentences  that  are  void  or  invalid  are  imposed. 
There  seems  to  be  no  question  under  the  authorities,  that  the 
Court  which  has  rendered  a  judgment  or  sentence  may,  during 
the  term  of  its  rendition,  and  before  any  part  of  it  has  been  ex- 
ecuted or  suffered,  revise  and  vacate  it,  or  change,  correct,  or 
amend  it  in  form  or  substance,  or  may  modify,  diminish,  or  in- 
crease it  witliin  the  limits  allowed  by  law,  and  in  fact  may 
render  a  new  judgment,  in  accordance  with  its  authority,  duty, 
and  discretion.  United  States  vs.  Harmison,  3  Saw.,  556;  ex 
parte  Caset,  18  Fed.,  86;  Bassett  vs.  United  States,  9  Wallace, 
38;  ex  parte  Lange,  18  Wallace,  163;  Reynolds  vs.  United  States. 
98  U.  S.,  145;  in  re  Bonner,  151  U.  S.,  242;  Williams  vs.  U.  S., 
168  U.  S.,  382;  ex  parte  Waterman,  33  Federal,  29;  U.  S.  vs. 
Harmon,  68  Federal,  472;  in  re  Groves,  117  Federal,  798. 

The  authorities  also  seem  to  be  a  unit  upon  the  proposition  that 
after  the  term  has  passed,  the  Court  has  no  further  control  over 
a  valid  judgment  or  sentence  which  it  has  rendered,  and  cannot 
vacate,  reform,  or  change  it,  or  pronounce  a  new  sentence.  Ex 
parte  Friday,  43  Federal,  916 ;  U.  S.  vs.  Malone,  9  Federal,  897 ; 
U.  S.  vs.  Pile,  130  U.  S.,  280;  U.  S.  vs.  Patterson,  29  Federal, 
775.  Independently  of  some  statutory  provision,  it  is  thoroughly 
settled  that  the  practice  of  the  Federal  Courts  with  reference 
to  granting  new  trials  in  criminal  cases  follows  the  Common 
Law,  so  that  the  Court  has  no  jurisdiction  over  such  motion  after 
the  term  expires  at  which  the  sentence  was  pronounced.  Chitty's 
Criminal  Law.  651 ;  Indianapolis  R.  R.  Co.  vs.  Horst,  93  LT.  S., 
291 ;  Newcomb  vs.  Wood,  97  U.  S.,  581 ;  Belknap  vs.  U.  S.,  150 
U.  S.,  588 ;  Kingman  vs.  Western  Mfg.  Co.,  170  U.  S.,  675 ;  Cap- 
ital Traction  Co.  vs.  Hof,  174  U.  S.,  1.  Where,  however,  there  is 
a  local  statute  of  the  state,  by  which  a  motion  for  a  new  trial  in 
a  criminal  case  is  justified,  even  though  the  term  be  ended  at 
which  the  sentence  and  judgment  was  passed,  it  seems  to  be  an 
open  question  as  to  just  what  course  the  Federal  Courts  would 
follow.     In  Trafton  vs.  U.   S.,  147   Federal,  513,  the  Circuit 


GENEEAL  PROA^ISIONS  APPLICABLE   TO  THE  PRACTICE     55 

Court  of  Appeals  for  the  First  Circuit  declined  to  pass  upon 
this  question,  referring  it  back  to  the  District  Court  for  first  in- 
vestigation, without  themselves  indicating  either  for  or  against 
such  practice. 

So,  also,  the  respectable  weight  of  authority  seems  to  indicate 
that  a  sentence  which  is  null  and  void  may  be  corrected  at  the 
same  term  in  which  it  was  entered,  even  though  the  prisoner  has 
been  in  prison  thereunder.  People  vs.  Dane,  81  Mich.,  36;  ex 
parte  Gilmore,  71  California,  624;  in  re  Bonner,  151  U.  S.,  242; 
in  re  Cliristian,  82  Federal,  885. 

While  for  some  time  it  may  have  been  considered  doubtful 
as  to  whether  the  sentencing  Court,  after  the  term,  could  recall 
before  it  the  prisoner,  and  re-sentence,  for  the  purpose  of  cor- 
recting a  null  and  void  judgment,  it  seems  now  to  be  deter- 
mined upon  the  weight  of  authority  and  sound  public  policy, 
that  such  action  may  be  taken.  At  Common  Law,  it  could  be 
done  on  a  writ  of  error  coram  vohis.  In  recent  times,  it  has 
often  been  done  by  motion.  Bank  of  United  States  vs.  JMoss,  6 
Howard,  38 ;  Bronson  vs.  Schulter,  104  U.  S.,  410 ;  Phillips  vs. 
Negley,  117  U.  S.,  665 ;  in  re  Wright,  134  U.  S.,  136 ;  in  re  Welty, 
123  Federal,  126 ;  ex  parte  Peeke,  144  Federal,  1020 ;  U.  S.  vs. 
Carpenter,  151  Federal,  216;  Francis  vs.  U.  S.,  152  Federal, 
157.  In  addition  to  these  authorities  is  the  ranking  authority 
of  the  Supreme  Court  of  the  United  States  in  in  re  Bonner,  152 
Federal,  252,  wherein  the  Court  says: 

"But  in  a  vast  majority  of  cases,  the  extent  and  mode  and 
place  of  punishment  may  be  corrected  by  the  original  court  with- 
out a  new  trial,  and  the  party  punished  as  he  should  be,  whilst 
relieved  from  any  excess  committed  by  the  Court  of  which  he 
complains.  In  such  case,  the  original  Court  would  only  set 
aside  what  it  had  no  authority  to  do,  and  substitute  directions 
required  by  the  law  to  be  taken  upon  the  conviction  of  the  of- 
fender. ' ' 

The  above  expression  was  written  in  a  case  where  many  terms 
had  elapsed ;  but  the  Supreme  Court  directed  that  the  prisoner, 
who,  ^^pon  his  application  for  an  haheas  corpus,  had  been  re- 
leased from  the  penitentiary  custody,  should  be  transmitted  to 
the  original  Court  for  the  steps  to  be  taken  in  accordance  with 


56     GElSTEEAL  PROVISIONS  APPLICABLE  TO  THE  PRACTlCfi 

the  excerpt  above.    Ballew  vs.  U.  S.,  160  U.  S.,  page  195,  affirms 
the  Bonner  case,  and  takes  action  in  harmony  therewith. 

§  35.  Remission  of  Penalty  on  Forfeited  Recognizance. — An 
application  to  a  Federal  Court  which  has  entered  judgment  on 
a  forfeited  recognizance  in  favor  of  the  United  States,  for  a  re- 
mission of  the  penalty  for  which  such  judgment  was  rendered 
under  Rev.  Stat.  1020,  which  gives  the  Court  power  to  remit  the 
whole  or  any  part  of  such  penalty,  "when  it  appears  to  the 
Court  that  there  was  no  willful  default  of  the  party,''  is  not  a 
motion  to  vacate  the  judgment,  and  may  be  entertained  after  the 
term  at  which  the  judgment  was  entered.  U.  S.  vs.  Jenkins,  et 
al,  176  F.,  672. 

§  36.  Bail  After  AiRrmance. — The  affirmance  by  the  Circuit 
Court  of  Appeals  of  a  judgment  of  conviction  in  a  criminal  case 
is  the  end  of  the  proceedings  in  error,  and  that  coui*t  has  no 
power  to  continue  defendant's  bail,  nor  to  admit  him  to  new  bail 
pending  his  application  to  the  Supreme  Court  for  a  writ  of  cer- 
tiorari, but  the  court  may,  for  good  cause  shown,  defer  the  be- 
ginning of  his  sentence  for  a  reasonable  time.  Walsh  vs.  U.  S., 
177  F.,  208. 

§  37.  Severance. — Severance  and  separate  trials  were  not  a 
Common  Law  right,  but  were  permitted  at  the  discretion  of  the 
Court,  in  all  grades  of  offenses,  including  misdemeanor  and  fel- 
ony. It  is  generally  presumed  that  persjons  jointly  indicted  are 
to  be  tried  jointly,  but  when,  in  a  particular  instance,  this  would 
work  injustice  to  a  party,  the  Court,  under  the  Common  Law, 
will  permit  a  severance  and  separate  trials.  Some  of  the  States, 
by  statute,  authorize  and  guarantee  this  as  a  right.  In  the  Fed- 
eral Courts,  however,  the  rule  is  the  Common  Law  rule  stated 
above.  The  application  for  severance  may  come  from  either  the 
defendant  or  the  prosecution,  and  there  are  authorities  which 
hold  that  a  request  by  the  prosecuting  officer  for  a  severance  will 
be  granted  as  a  matter  of  right,  1  Bishop  Crim.  Procedure, 
page  649. 

Re-stating  the  Common  Law  rule,  it  is.  that  the  trvnng  together  • 
of  joint  defendants  promotes  convenience  and  justice ;  and  un- 
less the  contrary  appears,  the  trial  will  be  joint.     If,  however, 
there  be  antagonistic  defenses,  or  important  evidence  not  adduci- 


GENERAL  PEOVlSIONS  APPLICABLE  TO  THE  PRACTICE     57 

ble  upon  joint  trial;  or  where  the  husband  and  wife  are  jointly 
indicted,  and  the  testimony  of  the  wafe  would  not  be  admissible 
against  the  husband;  or  if  the  testimony  would  be  prejudicial 
against  one  and  incompetent  against  another;  or  where  there  be 
a  contention  of  one  which  is  not  admissible  against  another, — 
the  Court  may,  in  his  discretion,  grant  separate  trials. 

In  United  States  vs.  Marchant  and  Colson,  25  U.  S.,  page  479 ; 
6  Law  Ed.,  700,  the  Supreme  Court  of  the  United  States  held, 
speaking  through  Justice  Story,  that, 

"Where  two  or  more  persons  are  jointly  charged  in  the  same 
indictment  with  a  capital  offense,  they  have  not  a  right  by  law 
to  be  tried  separately,  without  the  consent  of  the  prosecutor ;  but 
such  separate  trial  is  a  matter  to  be  allowed  in  the  discretion 
of  the  Court." 

See  also  19  Vol.  Enc.  of  Pleading  and  Practice,  page  521, 

In  Ball  vs.  United  States,  163  U.  S.,  663,  41  Law  Ed.,  300,  the 
Supreme  Court  held,  in  a  case  where  two  defendants  moved  that 
they  be  tried  separately  from  Ball,  a  co-defendant,  alleging  as  a 
cause  for  such  motion  that  the  Government  relied  on  liis  acts  and 
declarations  made  after  the  killing,  and  not  in  their  presence  or 
hearing,  and  because  he  was  a  material  witness  in  their  behalf, 
that  the  question  whether  defendants  jointly  indicted  should  be 
tried  together  or  separately,  was  a  question  resting  in  the  sound 
discretion  of  the  Court  below;  and  it  not  appearing  that  there 
was  any  abuse  of  that  discretion  in  ordering  the  three  defend- 
ants tried  together,  or  that  the  Court  did  not  duly  limit  the  ef- 
fect of  any  evidence  introduced  which  was  competent  against  one 
defendant  and  incompetent  against  others,  Sparf  vs.  U.  S.,  156 
U.  S.,  51;  39  Law  Ed.,  343,  such  discretion  would  not  be  re- 
viewed on  writ  of  error. 

In  Cochran  against  the  United  States,  147  Federal,  206,  the 
Circuit  Court  of  Appeals  for  the  Eighth  Circuit  affirms  this  posi- 
tion, but  holds  that  United  States  Courts  held  in  territories 
which  are  governed  by  local  statutes  which  give  a  right  of  sev- 
erance, that  the  United  States  Courts  will,  in  such  jurisdictions, 
grant  the  local  right. 

In  Richards  against  the  United  States,  175  Federal,  page  911, 
the  Circuit  Court  of  Appeals  for  the  Eighth  Circuit  held  that 


58     GENERAL  PROYTSTOXS  APPLICABLE  TO  THE  PRACTICE 

the  request  of  defendants  charged  in  the  same  indictment,  for 
separate  trials  is  addressed  to  the  discretion  of  the  Court,  and 
its  action  in  refusing  the  same  will  not  be  reviewed  in  the  ab- 
sence of  clear  indications  that  serious  prejudice  resulted  there- 
from to  one  or  more  of  the  defendants. 

§  38.  Habeas  Corpus. — Under  the  Federal  practice,  the  return 
to  a  writ  of  habeas  corpus  must  recite  facts ;  and  when  it  recites 
facts,  verity  will  be  imported  thereto  until  impeached.  Peti- 
tions that  merely  allege  conclusions  of  law,  such  as  that  the  re- 
spondent had  a  right  to  detain  the  petitioners,  are  held  to  be  in- 
sufficient, and  do  not  controvert  the  allegations  of  illegal  deten- 
tion alleged  by  the  petitioner.  In  Stretton  vs.  Shaheen,  176 
Federal,  735,  the  Circuit  Court  of  Appeals  for  the  Fifth  Circuit 
held  that  a  return  to  a  writ  of  hahcos  corpus  obtained  on  behalf 
of  immigrants  upon  petitions  alleging  their  illegal  detention  by 
an  Inspector,  which  alleged  no  facts,  but  merely  as  a  conclusion 
of  law  that  the  respondent  had  the  right  to  detain  the  petition- 
ers, were  insufficient.  In  Streton  vs.  Rudy,  176  Federal,  727,  the 
same  Court  held  that  where  a  return  shows  a  state  of  facts  under 
which  the  petitioner  is  lawfully  held,  that  if  there  be  no  evidence 
controverting  such  facts,  the  petitioner  will  be  remanded  to  the 
custody  of  the  officer,  and  it  is  error  to  release  the  petitioner 
imder  such  a  state  of  facts,  and  cites  Japanese  Immigrant  Case, 
189  U.  S.,  86,  47  Law  Ed.,  721,  and  Chin  Yow  vs.  U.  S.,  208  U. 
S.,  8;  52  Law  Ed.,  369. 

§  39.  Immunity. — Since  the  passage  of  the  Federal  Sherman 
Anti-Trust  and  Interstate  Conunerce  Act,  so-called,  the  question 
has  arisen  whether  the  immunity  from  prosecution  therein 
guaranteed  means  a  shield  from  any  prosecution,  or  a  protec- 
tion against  successful  prosecution.  In  the  ease  of  Heike  vs. 
United  States,  decided  May  second,  1910,  the  Court  passed  upon 
this  question,  and  approved  Brown  vs.  Walker,  in  161  U.  S., 
591,  in  which  the  Constitutionality  of  the  Immunity  Statute 
was  sustained,  and  said  in  substance  that  a  shield  against  success- 
ful prosecution,  available  to  the  accused  as  a  defense,  and  not 
immunity  from  the  prosecution  itself,  is  what  was  secured  by  the 
Act  of  February  twent>'-fifth,  1903.  as  amended  by  the  Act  of 
June  thirtieth,  1906,  providing  that  no  person  shall  be  prose- 


GENEEAL  PEOVISIONS  APPLICABLE   TO  THE  PRACTICE     59 

cuted  or  subjected  to  any  penalty  or  forfeiture  for,  or  on  account 
of,  any  prosecution,  matter,  or  thing,  concerning  Avhich  he  may 
testify  or  produce  evidence  in  any  proceeding,  suit,  or  prose- 
cution under  the  said  Acts. 

The  facts  of  the  Heike  case  were  that  Heike  was  indicted 
with  others  for  alleged  violations  of  the  Customs  laws  of  the 
United  States,  in  connection  with  the  fraudulent  importation  of 
sugar,  and  also  for  conspiracy  under  Section  5-i-lO  of  the  Re- 
vised Statutes  of  the  United  States,  to  defraud  the  United  States 
of  its  revenues.  Heike  appeared  and  filed  a  special  plea  in  bar. 
claiming  immunity  from  prosecution  imder  the  aforementioned 
Act.  The  plea  set  up,  in  substance,  that  Heike  had  been  called 
upon  to  testify  before  the  grand  jury,  in  matters  concerning  the 
prosecution  against  him,  and  had  thereby  become  immune  from 
prosecution  under  the  law.  The  Government  filed  a  replication, 
and  the  issues  thus  raised  were  brought  to  trial,  the  result  of 
which  was  a  verdict  for  the  Government  upon  the  issue ;  and 
thereafter  Heike  asked  to  be  permitted  to  plead  over,  and  he 
then  plead  not  guilty.  The  Court  then  held  that  the  judgment 
on  the  special  plea  was  not  a  final  judgment  from  which  an  ap- 
peal could  be  had,  and  rendered  a  decision  as  above  indicated. 

§  40.  Improper  Person  in  Grand-Jury  Eoom. — An  expert  ac- 
countant who  is  not  an  attorney-at-law,  appointed  by  the  Attor- 
ney General  "a  special  assistant"  to  a  United  States  Attorney, 
to  assist  in  the  investigation  and  prosecution  of  a  particular  case 
is  not  an  "officer  of  the  Department  of  Justice,"  Avithin  the 
meaning  of  Act  June  30,  1906,  C.  3935.  34  Stat.  816.  and  cannot 
be  authorized  by  the  Attorney  General  to  conduct  or  assist  in  the 
conducting  proceedings  before  the  grand  jury — and  his  presence 
in  room  which  results  in  bill  is  ground  for  quashing  same.  U.  S. 
vs.  Heinze,  177  F.,  770.  See  also  U.  S.  vs.  American  Tobacco 
Co.,  177  F..  774,  as  to  this  and  sufficiency  of  other  abatement 
pleas  and  time  for  filing  same. 

§  41.  Private  Prosecutors  Unknown  in  Federal  Courts. — The 
Federal  statutes  provide  for  the  appointment  of  District  Attor- 
neys and  their  assistants,  for  the  purpose  of  prosecuting  offenses 
against  the  Federal  laws.  Judge  Hammond,  in  United  States 
vs.  Stone,  8  Federal,  232,  held  that  private  prosecutors  are  un- 


60    GENEEAL  PROVISIONS  APPLICABLE  "TO  THE  PRACTICE 

known  to  the  practice  of  the  Federal  Courts,  the  District  Attor- 
ney being  alone  anthorized  to  prosecute ;  and  in  speaking  of  this 
matter,  he  said: 

"Under  our  Federal  practice,  from  the  earliest  times,  and  by 
force  of  the  statute,  the  District  Attorney  is  the  only  prosecutor 
known  to  our  law ;  and  as  a  matter  of  fact,  in  this  Court  at  least, 
210  private  prosecutor  has  ever  been  recognized.  Act  of  1879, 
Chapter  XX..  Section  35,  (1  St.,  92)  ;  Revised  Statutes,  Sec. 
771;  U.  S.  vs.  Mimdel,  6  Coll.,  245;  U.  S.  vs.  McAvoy,  6  Blatchf., 
418;  U.  S.  vs.  Blaisdell,  3  Ben.,  132,  where  the  Court  refused  to 
recognize  an  agreement  of  the  Executive  Department  not  to 
prosecute  the  offender,  and  said,  that,  'when  there  is  no  District 
Attorney  in  commission,  the  Government  cannot  prosecute  in 
this  Court,'  I  Bishop  Criminal  Pr.,  Sec.  278.  It  is  impossible, 
therefore,  for  anyone  to  occupy  the  place  of  a  private  prosecutor 
in  this  Court." 

§  42.  Proof  of  Witness'  Former  Conviction In  the  absence  of 

a  Federal  statute  on  the  subject,  the  incompetency  of  a  witness, 
by  reason  of  his  prior  conviction  of  a  felony,  cannot  be  sho-wii 
upon  his  examination,  but  only  by  the  production  of  the  record, 
or  an  exemplified  copy  of  it.  Rise  vs.  United  States,  144  Federal, 
374.  If  the  guilt  of  the  party  should  be  shown  by  oral  evidence, 
and  even  upon  his  own  admission,  (though  in  neither  of  these 
modes  can  it  be  proved,  if  the  evidence  be  objected  to),  or  by 
his  plea  of  guilty  which  has  not  been  followed  by  a  judgment, 
the  proof  does  not  go  to  the  competency  of  the  witness,  however 
it  may  effect  his  credibility ;  and  the  judgment  itself,  when 
offered  against  his  admissibility,  can  be  proved  only  by  the  rec- 
ord, or  in  proper  cases,  by  an  authenticated  copy,  which  the 
objector  must  offer  and  produce  at  the  time  when  the  witness 
is  about  to  be  sworn,  or  at  furthest,  in  the  course  of  the  trial. 
I  Greenleaf  on  Evidence,  Fourteenth  Edition,  375;  457. 


CHAPTER  III. 
POSTAL  CRIMES. 

Note. — The  first  numbers  indicate  the  old  Sections;  then  follows  a  dash, 
and  after  the  dash  the  numbers  indicate  the  Sections  in  tne  new  Code. 

§  43.  Jurisdiction  of  State  and  Federal  Courts. 

44.  Section  3833  as  to  Jurisdiction. 

45.  Breaking  Into  and  Entering  Post-Office:    5478 — 192. 

46.  Unlawfully  Entering  Postal-Car,  or  Interfering  with  Postal-Clerk: 

New  Code,  193. 

47.  Assaulting   Mail   Carrier   with   Intent   to   Eob;    Kobbing  Mail   and 

Injuring  Letter-Boxes  or  Mail  Matter,  and  Assaulting  Carrier: 
3869,  5466,  5472,  and  5473—197  and  198. 

48.  Obstructing  the  Mails:    3995—201. 

49.  Ferryman  Delaying  the  Mail:  3996—202.      ■ 

50.  Postmaster   or  Other  Employee  Detaining   or  Destroying   Newspa- 

pers:  5471—196. 

51.  Postmaster   or   Employee   of   Service   Detaining    or   Destroying   or 

Embezzling  Letter:   3890,  3891,  and  5467—195. 

52.  Stealing,    Secreting,   Embezzling,   Etc.,   Mail  Matter   or   Contents: 

3892,  5469,  and  5470—194. 

53.  Obscene  Matter,  Etc.,  Non-Mailable,  and  Penalties:   3893—211. 

54.  Libelous  and  Indecent  Wrappers  and  Envelopes,  Etc. : 

55.  Use  of  Mails  for  Fraudulent  Purposes:   5480,  I  Sup.,  694—215,. 

56.  Civil  Statute  Against  Fraudulent  Use  of  Mail:   3929. 

57.  Fraudulently  Assuming  Fictitious  Address  or  Name:  5480;  I  Sup., 

695—216. 

58.  Lottery,   Gift  Enterprises,   Circulars,   Etc.,   not   Mailable:    3894;    I 

Sup.,  803;  II  Sup.,  435—215. 

59.  What  Is  a  Lottery  or  Chance. 

60.  Land  Schemes. 

61.  Issuing  of  Stock. 

62.  Other  Cases  Under  the  Lottery  Statute. 

63.  Postmasters  Not  to  Be  Lottery  Agents:  3851—214. 

64.  False   Keturns   to   Increase   Compensation:    3855;    I   Sup.,    417;    I 

Sup.,  419;   Sec.  2,  p.  602,  27  St.  L.— 206. 

65.  Civil  Eemedy. 

61 


62  POSTAL   CRIMES 

66.  Collection  of  Unlawful  Postage:   3899—207. 

67.  Unlawful  Pledging  or  Sale  of  Stamps:   3920;  20  St.  L.,  149—208. 

68.  Failure   to    Account   for  Postage   and   to   Cancel   Stamps :    I  Sup., 

249—209 

69.  Issuing  Money-Orders  "Without  Payment:  4030 — 210. 

70.  Counterfeiting   Money-Orders,   Etc.,   and   Fraudulently   Issuing   the 

Same  Without  Having  Eeceived  the  Money  Therefor :  5463 ;  I 
Sup.,  518;   I  Sup.,  593—218. 

71.  Counterfeiting  Postage  Stamps,  Domestic  or  Foreign:    .5464,   5465 

—219,  220. 

72.  Misappropriation  of  Postal  Funds  or  Property  by  Use  or  Failure 

to  Deposit:  4046  and  40.53—225. 

73.  Rural  Carriers  Responsible  Under  the  Foregoing  Section. 

74.  Stealing  Post-Office  Property:   5475—190. 

75.  Other  Minor   Offenses   of  the   New   Code:    3829—179;    3981—180; 

3982—181;  3983—182;  3984—183;  3985—184;  3986—185;  3987 
—186;  3967—187;  3979—188;  5474—199;  3977—200;  3988— 
204;  4016—203;  3922,  3923,  3924,  and  3925—205;  3878,  I  Sup., 
247,  II  Sup.,  .507—217;  3887  and  I  Sup.,  578—221;  3947  and  I 
Sup.,  45—222;  I  Sup.,  593  and  33  St.  L.,  823—223;  False 
Claims,  224;  Employees  in  Contracts,  412—226;  I  Sup.,  135, 
and  467—227;  II  Sup.,  778,  and  30  St.  L.,  442—228;  4013—229. 

76.  All   Persons   Employed   in   Service,   Whether    Taken    Oath    or    not, 

Employees:   230  and  231. 

§  43.  Postal  Crimes. — The  provisions  of  Section  3833  that  give 
jurisdiction  to  all  civil  and  criminal  causes  arising  imder  the 
postal  laws  to  state  and  territorial  courts,  do  not  constitute  such 
courts  Federal  courts ;  and  if  either  a  civil  or  a  criminal  cause  be 
instituted  in  the  state  courts  involving  the  United  States  Postal 
Laws,  such  cause  may  be  removed  to  the  Federal  courts,  under 
the  second  section  of  the  Act  of  March  third.  1875.  In  the  case 
of  New  Orleans  National  Bank  vs.  Merchant,  18  Federal,  page 
841,  which  was  a  bill  for  injunction  filed  in  the  state  District 
court  against  the  United  States  Postmaster  at  New  Orleans, 
seeking  certain  relief  against  the  enforcement  of  the  sections  of 
the  Revised  Statutes  relating  to  fraud  orders,  and  which  action 
was  removed  into  the  Federal  Court  under  the  second  section 
of  the  Act  of  March  third,  1875,  Circuit  Judge  Pardee  held  that 
while  Section  3833  of  the  Revised  Statutes  confers  jurisdiction 
upon  the  courts  of  the  state  in  certain  instances,  as  courts  of  the 
state,  vet  it  does  not  thereby  make  them  Federal  courts,  and 


POSTAL  CRIMES  63 

cases  instituted  therein  are  properly  removable  to  the  Federal 
court. 

§  44.  How  Is  the  Section  Used.— It  would  seem,  therefore,  that 
3833  is  really  a  section  of  convenience.  Since. there  are  state 
justices  of  the  peace  and  committing  magistrates  at  nearly  all 
points,  the  state  or  Federal  officer  who  discovers  a  violation  of 
the  postal  laws  may  instantly  get  a  warrant  therefrom  without 
waiting  to  communicate  with  the  more  remote  and  less  accessible 
Federal  Commissioner.  The  accounts  for  the  state  justices  of 
the  peace  and  committing  magistrate  for  services  of  this  sort  are 
presented  for  approval  in  open  court,  just  as  United  States  Com- 
missioners are,  and  are  paid  by  the  Department  at  Washington. 

§  45.  Breaking  Into  and  Entering  Post-office. — We  now  come 
to  a  consideration  of  the  various  sections  of  the  Criminal  Code, 
starting  with  offenses  against  the  postal  service  and  system,  be- 
cause they  are  the  most  common  violation.  Section  5478  of  the 
old  statutes  is  altered  very  little  by  Section  192  of  the  new  Code. 
The  words  "hard  labor"  are  left  out  of  the  new  statute,  but 
under  Section  338  of  the  new  Code,  the  omission  of  the  words 
"hard  labor"  from  any  provision  of  the  new  Code  prescribed  in 
the  punishment,  is  not  construed  as  depriving  the  Court  of  the 
power  to  impose  hard  labor  as  a  part  of  the  punishment  in  any 
case  where  such  power  existed  under  the  old  statute. 

The  new  Section  also  contains  the  following  words,  "with  in- 
tent to  commit  in  such  post-office  or  building,  or  part  thereof  so 
used,"  that  were  not  in  the  old  statute.  These  words  were 
doubtless  added  by  the  codifiers,  to  call  the  attention  of  the 
pleader  to  the  fact  that  Congress  had  no  jurisdiction  to  prescribe 
a  penalty  for  entering  a  building,  or  for  committing  an  offense 
in  a  building,  unless  such  building  was  actually  used  as  a  post- 
office  or  such  offense  was  committed  in  that  part  of  said  building 
so  used  as  such  post-office. 

In  the  16  Federal,  page  235,  United  States  against  Campbell, 
the  Court  sustains  a  demurrer  to  an  indictment  which  charged 
forcible  breaking  into  a  building,  which  building  was  then  and 
there  used  in  part  as  a  post-office  of  the  United  States,  "with  the 
intent  then  and  there,  in  said  huilding,  to  commit  the  crime  of 
larceny."     In  passing  upon  the  demurrer,  the  Court  said  that. 


64  POSTAL   CRIMES 

"a  building  used  in  part  as  a  post-office  may  contain  many  rooms 
besides  the  one  or  more  used  as  a  post-office.  That  there  is  some 
portion  of  it  not  so  used  is  necessarily  implied  in  the  phrase 
'used  in  part  as  a  post-office.'  To  break  into  such  a  building 
with  the  intent  to  steal  the  purse  of  the  lodger  in  a  room  therein 
that  is  in  no  way  used  as  a  post-office,  nor  connected  with  it,  ex- 
cept that  it  is  under  the  same  roof,  does  not  appear  to  me  to  be 
an  act  which  the  United  States  may  punish,  upon  the  ground 
that  it  is  necessary  to  do  so  in  the  execution  of  the  power  granted 
to  Congress  to  establish  a  post-office."  Mr.  Justice  Storey,  in 
United  States  vs.  Coombs,  12  Peters,  76,  said:  "If  the  section 
admits  of  two  interpretations,  one  of  which  brings  it  within,  and 
the  other  presses  it  beyond,  the  constitutional  authority  of  Con- 
gress, it  will  become  our  duty  to  adopt  the  former  construction ; 
because  a  presumption  never  ought  to  be  indulged  that  Congress 
meant  to  exercise  or  usurp  any  unconstitutional  authority,  un- 
less that  conclusion  is  forced  upon  the  Court  by  language  alto- 
gether unambiguous." 

The  idea,  therefore,  is  that  the  statute  meant  to  punish  the 
breaking  into  a  building  used  in  part  as  a  post-office,  with  the 
intent  to  commit  larceny  in  that  part  of  the  building  so  used  as 
such  post-office.  To  the  same  effect  is  the  case  of  in  re  Byron. 
18  Federal,  page  723 ;  also  United  States  vs.  "Williams,  57  Fed., 
201 ;  also  United  States  vs.  Shelton,  100  Fed..  831 ;  United  States 
vs.  Martin,  140  Fed.,  256;  United  States  vs.  Saunders,  77  Fed., 
170. 

In  the  30  Federal,  232,  United  States  vs.  Lantry,  the  Court 
held  that  the  prisoners  were  not  entitled  to  the  presumption  that 
they  had  hidden  themselves  within  the  building,  merely  be- 
cause they  had  been  seen  with  other  persons  lawfully  within  the 
premises  before  they  were  closed  for  the  night.  In  this  same 
case,  the  Court  refused,  upon  habeas  corpus,  to  go  beyond  the 
finding  of  a  Commissioner,  as  to  the  probable  guilt  of  the  pris- 
oners, and  followed  the  authorities  of  in  re  Fowler,  4  Fed.,  303, 
and  in  re  Day,  27  Fed.,  678. 

The  case  of  Considine  vs.  United  States,  which  holds  that  a 
violation  of  Section  5478  is  a  misdemeanor,  and  not  a  felony,  and, 
therefore,  but  three  challenges  are  permitted  the  defendant,  will 


POSTAL  CEIMES  55 

uot  now  be  considered  binding  against  defendants  under  the  new 
Code,  for  the  reason  that  the  punishment  is  felonious  within  the 
meaning  of  such  offenses  as  defined  by  Section  335  of  the  new 
Code.  Section  819  of  the  Revised  Statutes  allows  the  defendant 
charged  with  a  felony  ten  challenges;  therefore,  one  being  pros- 
ecuted under  Section  192  would  be  entitled  to  ten  instead  of 
three  challenges. 

The  word  "forcible"  when  used  in  a  criminal  statute  in  de- 
scribing night-time  or  day-time  burglaries,  comprehends  the 
opening  of  a  door  or  the  raising  of  a  window  or  the  raising  of  a 
latch,  in  fact,  the  use  of  any  force  in  making  an  entry.  In  74 
Federal.  221.  United  States  vs.  Yennie.  it  was  held  that  an  entry 
into  a  postmaster's  room  in  the  post-office  building,  by  opening 
the  door,  was  a  forcible  entry  within  the  meaning  of  the  statute. 
This  case  is  also  interesting  in  that  it  determines  that  an  indict- 
ment is  good,  even  though  in  the  same  comit  it  charges  the  forci- 
ble entry  and  the  theft  of  the  property,  and  that  while  such  alle- 
gati(ms  constitute  separate  offenses  imder  old  Sections  5475  and 
5478.  yet  they  are  offenses  of  the  same  kind  and  the  same  grade 
of  punishment,  though  with  different  degrees  of  severity,  and 
upon  the  authority  of  Com.  vs.  Tuck..  20  Pick..  356,  the  Court 
holds  that  both  offenses  relate  to  and  are  parts  of  the  same  trans- 
action, and  may.  therefore,  be  included  in  the  same  count  with- 
out error,  though  perhaps  the  best  practice  not  to  do  so.  See 
also  Horner  vs.  United  States,  143  U.  S..  207;  ex  parte  Peters, 
12  Fed..  46. 

Sorenson  vs.  United  States,  143  Federal,  820,  and  Sorenson  vs. 
United  States.  168  Federal,  785,  are  cases  arising  under  Section 
5478,  and  which  do  not  decide  any  point  with  reference  to  the 
statute  or  an  indictment  thereunder.  They  contain,  however, 
some  interesting  questions  of  practice  with  reference  to  circum- 
stantial evidence  and  other  matters  not  necessary  to  here  discuss. 
^  46.  Unlawfully  Entering  Postal  Car  or  Interfering  with  Pos- 
tal Clerk,  Etc. — Closely  akin  to  the  statute  just  discussed  is  Sec- 
tion 193  of  the  new  Code,  which  inhibits  entering  by  violence  a 
post-office  car.  or  any  apartment  in  any  car.  steamboat,  or  vessel 
assigned  to  the  use  of  the  mail  service,  and  also  denominates  as 
an  offense  anv  wilful  or  malicious  assault  or  interference  with 


66  POSTAL   CRIMES 

any  postal  clerk  in  the  discharge  of  his  duties  in  connection  with 
such  car,  steamboat,  vessel  or  apartment,  and  also  punishes  any 
one  who  shall  wilfully  aid  or  assist  in  either. 

Neither  this  section,  nor  the  substance  thereof,  was  included 
in  the  old  Revised  Statutes.  There  was  a  provision  largely  sim- 
ilar passed  by  the  Fifty-seventh  Congress,  as  shown  at  page 
1176  of  the  32  Statute  at  Large.  That  provision  has.  however, 
been  broadened  by  the  omission  of  some  words  and  the  substitu- 
tion of  others. 

A  close  reading  of  the  statute  indicates  that  the  authorities, 
that  relate  to  entering  of  a  post-office  or  a  building  used  in  part 
as  such  office,  cited  under  the  old  statute  5478  and  under  the  new 
Section  192,  would  be  in  a  large  measure  applicable  to  this 
section. 

§  47.  Assaulting  Mail  Carrier  with  Intent  to  Rob,  and  Robbing 
Mail  and  Injuring  Letter  Boxes  or  Mail  Matter,  and  Assaulting 
Carrier,  Etc. — Under  this  heading,  for  convenience,  is  placed 
Sections  197  and  198  of  the  new  Code.  Section  197  is  a  combi- 
nation of  the  old  Sections  5472  and  5473. 

Section  198  comprehends  the  meat  of  old  Sections  3869  and 
5466.  3869  had  already  been  amended  by  the  Act  shown  on 
page  1175  of  the  first  part  of  Volume  32  of  the  Statutes  at  Large, 
which  was  an  act  of  the  Fifty-seventh  Congress.  The  present 
section,  as  it  now  stands,  is  intended  to  protect  more  certainly 
the  numberless  rural  route  and  star  route  boxes  and  mail  re- 
ceptacles. 

It  must  be  imderstood  that  no  mail  receptacle  is  protected  un- 
der this  statute,  unless  the  same  has  been  established,  approved. 
or  designated  by  the  Postmaster  General.  The  indictment  should, 
therefore,  allege  such  approval,  designation,  and  establishment, 
and  the  proof  must  so  show.  As  to  just  what  sort  of  proof  the 
Court  will  admit,  no  inflexible  rale  can  be  given.  The  Courts 
understand  that  it  is  impossible  to  bring  the  Postmaster  General 
or  some  informed  subordinate  from  his  office  into  the  various 
Districts  of  the  Union,  and  testify  to  such  action  at  "Washington, 
and  they,  therefore,  sometimes  admit  the  testimony  of  the  local 
postmaster  that  the  receptacle  is  the  proper  one.  or  sometimes 
they  admit  the  receptacle  itself,  which  has  stamped  thereon  the 


POSTAL  CRIMES  67 

words  designated,  established,  or  approved  by  the  Postmaster 
General.  So  also,  some  of  the  printed  regulations  of  the  Post- 
office  Department  give  the  dimensions  and  styles  and  descrip- 
tion of  the  various  receptacles,  and  these  are  sometimes  admitted. 
The  books  contain  no  particular  line  of  precedents  with  respect  to 
such  proof. 

Sfection  197  of  the  new  Code,  which  is,  as  above  stated,  a  sub- 
stitute for  5472  and  5-173  of  the  old  statute,  eliminates  some 
of  the  uncertainties  that  were  in  the  old  statutes,  and  as  the  new 
section  now  stands,  it  is  easily  understood.  The  following  cases 
were  interesting  under  the  old  section :  United  States  vs.  Reeves, 
38  Fed.,  404,  which  determined  in  line  with  the  academic  au- 
thorities, the  meaning  of  the  words  "dangerous  weapon."  the 
responsibility  of  one  aiding  or  advising  the  offense,  the  meaning 
of  the  words  ' '  attempt  to  rob, ' '  and  the  further  decision  that  the 
offense  is  committed  where  it  is  sho^Mi  that  the  mail  or  any  part 
thereof  is  taken  fraudulently  from  the  possession  of  the  carrier, 
against  his  will,  by  violence  or  putting  him  in  fear.  In  Jeff 
Harrison  vs.  United  States,  163  U.  S.,  140,  the  only  point  decided 
was  that  a  violation  of  5472  was  a  felony,  and  on  the  prosecution 
for  which  the  defendant  was  entitled  to  ten  peremptory  chal- 
lenges under  Section  819.  United  States  vs.  Hare,  2  Wharton 
Crim.  Cases,  283,  26  Federal  Cases,  148;  U.  S.  vs.  Wilson,  28 
Federal  Cases,  699 ;  U.  S.  vs.  Bowman,  5  Pac.  Rep.,  333. 

§  48.  Obstructing  the  Mail. — Section  201  of  the  new  Code  takes 
the  place  of  Section  3995  of  the  old,  and  enlarges  the  same  by 
adding  the  words  ''car,  steamboat,  or  other  conveyance  or  ves- 
sel, ' '  and  changes  the  punishment,  which  was,  in  the  old  statute, 
a  fine  of  not  more  than  a  hundred  dollars,  to  a  fine  of  not  more 
than  one  hundred  dollar,  or  imprisonment  for  not  more  than  six 
months,  or  both.  These  changes,  however,  do  not  render  value- 
less the  many  cases  arising  under  the  old  section. 

In  Salla  vs.  United  States,  104  Fed.,  544,  the  Court  of  Appeals 
for  the  Ninth  Circuit  held  that  an  indictment  charging  defendants 
with  conspiring  ''to  imlawfully,  wilfully,  maliciously,  and  Imow- 
ingly"  delay  and  obstruct,  etc.,  the  passage  of  a  railway  car  and 
train,  "which  said  railway  car  and  train  were  then  and  there 
carrying  and  transporting  the  mails  of  the  United  States."  was 


68  POSTAL   CRIMES 

insufificient  to  charge  a  violation  of  Section  3995,  since  it 
failed  to  charge  that  the  defendants  knew  that  said  car  and 
train  were  carrying  the  mails.  In  other  words,  the  authorities 
are  a  unit  upon  the  proposition  that  the  indictment  must  allege, 
and  the  proof  must  show,  that  the  defendants  knew  that  the 
vehicle  they  obstructed  carried  the  United  States  mail. 

By  an  act  of  the  Fifty-seventh  Congress,  second  session,  page 
1176  of  the  first  part  of  Volume  32,  Statutes  at  Large,  Congress 
determined  ' '  that  every  special  delivery  messenger,  when  actually 
engaged  in  carrying  or  delivering  letters  or  other  mail  matter 
under  contract,  directly  or  indirectly,  Avith  the  Post-office  De- 
partment, or  employed  by  the  Post-office  Department,"  shall  be 
deemed  a  carrier  or  person  intrusted  with  the  mail,  and  having 
custody  thereof,  within  the  meaning  of  certain  Sections  of  the 
Revised  Statutes,  which  included  old  Section  3995. 

It  has  been  directly  decided  that  two  or  more  may  conspire 
to  commit  the  offense  of  obstructing  the  mail,  as  shown  in  Conrad 
vs.  United  States,  127  Fed.,  798.  Other  interesting  cases  bearing 
upon  the  old  section  are  the  following:  United  States  vs.  Kirby. 
74  U.  S.;  19  Law  Ed..  278.  and  see  also  note;  In  re  Debs.  158  U. 
S.,  564;  Clune  vs.  United  States,  159  U.  S.,  590;  United  States 
vs.  Cassidy,  67  Fed..  698;  United  States  vs.  Thomas,  55  Fed.. 
380;  United  States  vs.  Sears,  55  Fed..  268;  United  States  vs. 
Woodward,  44  Fed.,  592;  United  States  vs.  Kane,  19  Fed.,  42; 
United  States  vs.  Claypool,  14  Fed.,  127;  United  States  vs.  De 
Mott,  3  Fed.,  478. 

An  officer  in  possession  of  a  civil  warrant  against  a  mail  car- 
rier is  not  justified  in  arresting  the  mail  carrier,  though 
the  carrier  be  not  detained  longer  tlian  necessary  for 
the  execution  of  the  warrant.  United  States  vs.  Harvey.  8 
Law  Rep..  77.  In  United  States  vs.  Barney.  3  Am.  Law  Journal. 
128,  tlic  Court  held  in  substance  that  the  hiw  did  not  allow  ;iti\- 
justification  of  a  wilful  and  voluntary  act  oF  ohsti'uction  to  the 
passage  of  th  email,  such  as  the  seizure  by  its  lawful  ownei*  of  a 
stolen  horse  found  in  a  mail  stage,  or  the  arrest  of  its  driver  for 
debt.  On  the  other  hand,  in  United  States  vs.  Hart.  I*ef.  C.  C.. 
390;  S.  C.  3  AVheeler's  Criminal  Case.  304.  the  Court  held  that 
the  Act  was  not  to  be  so  construed  as  to  prevent  the  arrest  of  the 


POSTAL  CRIMES 


(i!) 


driver  of  a  carriage  transporting  the  mail  when  he  was  driving 
through  a  crowded  city  at  such  a  rate  as  to  injure  the  lives  of 
the  inhabitants.  So  also,  it  is  understood  that  mere  service  of 
process  on  a  mail  carrier,  without  detaining  him.  is  not  an  ob- 
struction of  the  mail.    United  States  vs.  Harvey,  8  Law  Rep..  77. 

It  seems,  however,  to  be  settled  that  while  a  mail  carrier  is  not 
liable  to  arrest  upon  civil  process. — ^  that  he  is  liable  to 
arrest  on  a  charge  of  any  criminal  offense,  as  a  violation 
of  the  law^  against  the  sale  of  liquor.  Penny  vs.  Walker,  64 
Maine,  430;  S.  C.  18  American  Rep.,  269. 

The  safest  practice,  however,  in  view  of  th(^  public  interest  in 
the  speeding  of  mails,  is  for  the  ol^cer  to  make  the  arrest  after 
the  carrier  has  delivered  his  charge,  which  is  not  at  all  difficult 
to  accomplish. 

§  49.  Ferryman  Delaying  the  Mail. — Section  202  differs  little 
from  the  old  statute  3996,  and  reads  as  follows : 

"Whoever,  being  a  ferryman,  shall  delay  the  passage  of  the 
mail  by  wilful  negligence  or  refusal  to  transport  the  same  across 
any  ferry,  shall  be  fined  not  more  than  one  hundred  dollars." 

The  penalty  of  the  old  statute  was  ten  dollars,  and  required 
that  a  delay  should  be  for  ten  minutes,  but  the  new  section  evi- 
dently means  any  delay  that  is  wilful. 

§  50.  Postmaster  or  Other  Employee  Detaining  or  Destroying 
Newspapers. — Section  196  of  the  new  Code,  which  reads  as  fol- 
lows: 

"Whoever,  being  a  postmaster  or  other  person  employed  in  any 
department  of  the  postal  service,  shall  improperly  detain,  delay, 
embezzle,  or  destroy  any  newspaper,  or  permit  any  other  person 
to  detain,  delay,  embezzle,  or  destroy  the  same,  or  open,  or  permit 
any  other  person  to  open,  any  mail  or  package  of  newspapers  not 
directed  to  the  office  where  he  is  employed;  or  whoever  shall 
open,  embezzle,  or  destroy  any  mail  or  package  of  newspapers 
not  being  directed  to  him,  and  he  not  being  authorized  to  open  or 
receive  the  same ;  or  whoever  shall  take  or  steal  any  mail  or 
package  of  newspapers  from  any  post-office  or  from  any  person 
having  custody  thereof,  shall  be  fined  not  more  than  one  hundred 
dollars,  or  imprisoned  not  more  than  one  year,  or  both," 
replaced  Section  5471  of  the  old  statutes,  and  contains  practically 
nothing  new  except  that  the  wording  is  changed  somewhat,  and 
the  punishment  is  enlarged. 


70  POSTAL   CRIMES 

For  some  reasons  there  were  few  prosecutions  under  5471,  and 
so  far  as  reported  decisions  is  concerned,  the  books  contain  none. 
Ex  parte  Fridaj^  in  43  Federal,  page  920,  cited  by  some  annota- 
tions, really  does  not  bear  upon  the  section  other  than  to  cite  it 
as  an  instance  of  the  power  of  a  Court  to  impose  hard  labor,  even 
though  the  term  be  less  than  one  year.  In  State  vs.  Nichols.  50 
Louisiana  Ann.,  699,  the  statute  is  cited. 

At  page  512  of  the  First  Volume  of  the  Supplement,  being  an 
Act  of  the  Forty-ninth  Congress,  which  applies  alike  to  all  of  the 
statutes  relating  to  offenses  against  the  postal  service,  committed 
by  persons  employed  therein  in  connection  with  the  immediate 
delivery  service,  whether  temporarily  or  permanently,  or  whether 
under  oath  or  not : — 

"That  any  person  employed  to  make  immediate  delivery  of 
letters  or  other  mail  matter  under  the  provisions  of  this  Act,  or 
the  Act  of  which  the  same  is  amendatory,  shall  be  deemed  an 
employee  of  the  postal  service,  whether  he  may  have  been  sworn 
or  not,  or  temporarily  or  permanently  employed,  and  as  such 
employee  shall  be  liable  to  any  penalties  or  punishments  provided 
by  law  for  the  improper  detention,  delay,  secretion,  rifling,  em- 
bezzlement, purloining,  or  destruction  of  any  letter  or  other  ar- 
ticle of  mail  matter,  or  the  contents  thereof,  entrusted  to  him 
for  delivery,  or  placed  in  his  custody." 

§  51.  Postmaster  or  Employee  of  Service  Detaining  or  Destroy- 
ing Embezzling  Letter,  Etc. — Section  395  of  the  new  Code,  which 
reads  as  follows : 

"Whoever,  being  a  postmaster  or  other  person  employed  in  any 
department  of  the  postal  service,  shall  unlawfully  detain,  delay, 
or  open  any  letter,  postal  card,  package,  bag,  or  mail  intrusted 
to  him  or  which  shall  come  into  his  possession,  and  which  was 
intended  to  be  conveyed  by  mail  or  carried  or  delivered  by  any 
carrier,  messenger,  agent,  or  other  person  employed  in  any  de- 
partment of  the  postal  service,  or  forwarded  through  or  deliv- 
ered from  any  post-office  or  station  thereof  established  by  author- 
ity of  the  Postmaster  General;  or  shall  secrete,  embezzle,  or  de- 
stroy any  such  letter,  postal  card,  package,  bag,  or  mail;  or  shall 
steal,  abstract,  or  remove  from  any  such  letter,  package,  bag,  or 
mail,  any  article  or  thing  contained  therein,  shall  be  fined  not 
more  than  five  hundred  dollars,  or  imprisoned  not  more  than  five 
years,  or  both," 

takes  the  place  of  Sections  3890,  3891,  and  5467  of  the  old  statutes. 


POSTAL  CRIMES 


71 


The  new  law,  as  above  quoted,  does  not  contain  the  inhibition 
against  the  holding  of  office  by  a  postmaster  who  unlawfully  :3e- 
tains  letters  or  mail  matter,  but  largely  increases  the  punishment. 
The  three  old  sections  were  a  source  of  considerable  confusion, 
and  with  the  making  of  the  new  section,  which  plainly  states,  in 
commensurate  words,  the  elements  of  the  offenses  therein  in- 
cluded, this  will  be  largely  removed. 

The  system  of  postal  supervision  and  preservation  by  and 
through  efficient  Inspectors,  ofttimes  makes  it  necessary  to  use 
what  have  been  termed  ' '  decoy ' '  letters.  A  series  of  thefts  may 
be  reported  at  a  certain  office,  and  by  a  process  of  elimination 
the  Inspectors  conclude  that  the  thefts  occur  during  a  certain 
watch.  There  may  be  more  than  one  man  upon  this 
watch,  and  it  is  entirely  unjust  to  suspect  all  of  them.  Decoys 
are,  therefore,  used.  These  decoy  letters  are  sometimes  called 
"test"  letters.  The  question  arose  as  to  whether  or  not  such  let- 
ters could  be  the  subject  of  the  offense  described  and  punished  by 
5467,  and  the  other  articles  akin  thereto.  It  is  now  settled,  be- 
yond dispute,  that  such  letters  may  be  the  subject  of  the  offenses 
defined.  In  Hall  vs.  United  States,  168  U.  S.,  631 ;  42  Law  Ed.. 
607,  the  point  was  raised  as  follows,  which  is  taken  from  that 
case: 

"The  evidence  showed  that  the  Government  detectives  pre- 
pared a  special  delivery^  letter  designed  as  a  test  or  decoy  letter, 
containing  marked  bills,  and  delivered  it,  bearing  a  special  de- 
livery stamp,  to  the  night-clerk  in  charge  of  Branch  Station  "F" 
of  the  post-office.  The  defendant  was  not  a  letter  carrier,  but  a 
clerk  employed  at  that  office,  whose  duty  it  was  to  take  charge  of 
special  delivery  letters,  enter  them  in  a  book  for  that  purpose,  and 
then  place  them  in  course  of  transmission.  The  letter  in  question 
was  addressed  to  Mrs.  Susan  Metcalf,  a  fictitious  person,  346 
East  Twenty-fourth  Street,  New  York  City,  a  fictitious  number. 
The  letter  was  placed  by  the  night  clerk  with  other  letters  upon 
the  table,  where  such  letters  were  usually  placed,  and  the  de- 
properly  entered  the  other  letters,  but  did  not  enter  this  letter, 
fendant,  entering  the  office  not  long  after,  took  this  letter,  along 
with  the  others  on  the  same  table,  removed  them  to  his  desk,  and 
On  leaving  the  office,  not  long  after,  the  omission  to  enter  the 
letter  having  been  observed,  he  was  arrested,  and  the  money  con- 
tents of  the  letter,  marked  and  identified  by  the  officers,  were 
found  upon  his  person.    The  officers  testified  upon  cross  examina- 


72  POSTAL   CRIMES 

tion  that  the  address  was  a  fictitious  one ;  that  the  letter  was  de- 
signed as  a  test  letter,  and  that  they  did  not  intend  that  the  letter 
should  be  delivered  to  Mrs.  Susan  Metcalf,  or  that  address,  and 
that  it  could  not  be  delivered  to  that  person  at  that  address. ' ' 

Upon  this  state  of  facts,  the  Supreme  Court  held  that  the  facts 
stated  an  offense,  and  the  evidence  was  entirely  sufficient  to  sus- 
tain the  conviction  upon  the  latter  part  of  Section  5467,  which  did 
not  include  the  words  "intended  to  be  conveyed  by  mail."  The 
Court  cites  Good  vs.  United  States,  159  U.  S.,  663;  40  Law  Ed., 
297;  Montgomery  vs.  United  States.  162  U.  S..  410;  40  Law  Ed., 
1020. 

It  will  be  observed  that  the  new  statute  uses  the  word  ' '  such, ' ' 
which  means,  beyond  any  question  of  a  doubt,  a  letter,  postal- 
card,  package,  bag,  or  mail,  which  was  intended  to  be  conveyed 
by  mail,  or  carried  or  delivered  by  a  carrier,  messenger,  agent, 
or  other  person  employed  in  a  Department  of  the  Postal  Service, 
or  forwarded  through,  or  delivered  from,  any  post-office  or  sta- 
tion. If,  therefore,  the  testimony  of  the  Government  Inspector 
should  disclose  that  he  did  not  intend  that  the  decoy  or  test 
should  be  carried  or  delivered  or  conveyed  by  mail,  or  forwarded 
through,  or  delivered  from,  any  post-office,  then  and  in  that 
event,  the  new  section  would  not  be  sufficiently  broad  to  prosecute 
an  employee  who  stole  a  decoy  or  test  letter.  Hall  vs.  U.  S.,  168 
U.  S.,  631.  The  last  portion  of  the  old  statute  5467  made  it  an 
offense  for  any  such  person,  to  wit,  employee,  to  take  any  of  the 
things  mentioned  therein  out  of  any  letter,  packet,  bag,  or  mail  of 
letters,  which  had  come  into  his  possession  as  such  employee ; 
which  is  vastly  different  in  its  broadness  from  the  present  statute. 

The  case  of  Ennis  vs.  United  States,  154  Federal.  842,  decides 
that  a  piece  of  mail  matter  which  had  been  set  aside  by  a  dishon- 
est employee  to  be  later  taken,  and  which  was  discovered  by  an 
inspector,  and  taken  to  the  addressee,  from  whom  the,inspector  se- 
cured perm^ission  to  open  the  packet,  and  thereupon  marked  cer- 
tain bills,  and  placed  them  in  the  said  packet,  and  then  returned 
the  packet,  where  the  employee  had  left  it,  such  employee  after- 
Avards  taking  the  packet :  held,  that  the  packet,  at  the  time  it 
was  returned  by  the  Inspector,  had  not  cea.sed  to  be  mail  matter, 
and  that  the  defendant  was,  therefore,  properly  convicted   of 


POSTAL  CRIMES  73 

embezzling  tlie  same,  in  support  of  which  the  Court  cites  Scott 
vs.  United  States,  172  U.  S.,  Mli;  43  Law  Ed.,  471,  and  also  ar- 
gues that  a  letter  delivered  to  the  wrong  address,  and  re-mailed 
with  the  canceled  stamp  thereon,  if  stolen  after  being  re-mailed, 
would  appear  to  be  an  offense  under  the  section.  In  the  case  of 
Bromberger  vs.  United  States,  128  Federal,  346,  the  Court  held 
that  a  letter  properly  stamped,  with  the  receiving  stamp  of  tlie 
office  thereon,  and  placed  in  a  carrier's  pigeon  hole  at  a  jjostal 
station,  Avith  other  letters  addressed  to  a  real  person  on  his  route 
is  "intended  to  be  conveyed  by  mail,"  and  its  abstraction  by  the 
carrier,  and  the  taking  of  the  money  therefrom  constitutes  an 
offense  under  5467,  although  it  was  placed  there  by  postal  in- 
spector for  the  purpose  of  testing  the  carrier's  honesty.     " 

The  difference  between  the  Bromberger  case  and  the  Hall  case 
is.  that  the  test  or  decoy  in  the  Bromberger  case  was  addressed 
to  an  actual  person,  and  was  intended  for  delivery  to  such  per- 
son, while  in  the  Hall  ease,  it  was  a  fictitious  address,  and  no 
such  delivery  could  be  made.  Under  the  new  statute,  therefore, 
the  indictment  must  allege,  and  the  proof  must  show,  that  the 
matter  was  intended  to  be  conveyed  by  mail,  or  carried  or  de- 
livered by  a  carrier,  messenger,  agent,  or  other  person  employed 
in  a  Department  of  the  Postal  Service,  or  forwarded  through  or 
delivered  from  any  post-office  or  station  thereof,  established  by 
authority  of  the  Postmaster  General,  and  if  the  decoy  or  test  be 
to  a  fictitious  person,  at  an  address  where  the  delivery  cannot  be 
made,  it  would  not.  under  the  new  statute,  be  an  offense. 

Under  the  authority  of  Shaw  vs.  United  States,  in  165  Federal, 
page  174,  the  indictment  must  allege  lawful  possession,  but  under 
the  authorities  of  United  States  vs.  Trasp.  127  Federal,  471.  and 
Bowers  vs.  United  States,  148  Federal,  379,  and  United  States  vs. 
Falkenhainer,  21  Fed.,  624,  it  is  not  necessary  to  allege  the  own- 
ership of  the  packet.  The  employee,  under  the  present  section, 
whether  he  be  postmaster  or  other  person,  can  offend  against  the 
new  law  only  when  he  is  such  employee,  has  mail  entrusted  to 
him,  or  has  mail  in  his  possession  when  the  same  was  to  be  con- 
veyed and  delivered  as  hereinbefore  shown.  So.  too.  it  will  be 
noticed  that  the  new  section  makes  it  an  offense  to  secrete,  em- 
bezzle, or  destroy  any  such  letter,  postal  card,  package,  bag.  or 


74  POSTAL   CRIMES 

mail,  and  also  makes  it  an  offense  to  steal,  abMract,  or  remove 
from  any  such  package,  bag,  or  mail,  any  article  or  thing  therein, 
and  does  not  make  use  of  the  word  "value."  In  other  words, 
any  article,  whether  of  value  or  not,  and  any  letter  or  packet, 
whether  it  has  any  article  in  it  or  not,  under  this  new  section,  is 
protected  by  its  provisions,  and  it  is  thought  that  this  broadness 
comes  by  reason  of  its  comprehending  the  elements  of  3890  and 
3891,  as  well  as  those  of  5467.  Other  cases  bearing  upon  these 
three  sections  are  Alexis  vs.  United  States,  129  Fed.,  60;  Chit- 
wood  vs.  United  States,  153  Fed.,  551 ;  United  States  vs.  Kerr, 
159  Fed.,  185;  United  States  vs.  "Wilson,  44  Fed..  593;  United 
States  vs.  Lacher,  134  U.  S.,  624;  United  States  vs.  Delany,  55 
Fed.,  475;  United  States  vs.  Gruver,  35  Fed.,  59;  United  States 
vs.  Byrne,  44  Fed..  188;  Walster  vs.  United  States.  42  Fed..  891  ; 
United  States  vs.  Matthews,  35  Fed.,  890;  Rosencrans  vs.  United 
States,  165  U.  S.,  257;  in  re  Wight,  134  U.  S.,  136;  U.  S.  vs.  Tay- 
lor. 37  Fed.,  200;  Jones  vs.  United  States,  27  Fed..  447;  IT.  "s. 
vs.  Hamilton.  9  Fed..  442;  Scott  vs.  United  States.  172  I^.  S..  343. 
§  52.  Stealing,  Secreting,  Embezzling,  Etc.,  Mail  Matter  or  Con- 
tents.— Section  194  of  the  new  Code  is  in  substitution  of  Sec- 
tions 3892  and  5469  and  5470  of  the  Code  of  1878.  and  by  the 
wideness  or  latitude  of  punishment  and  generality  of  its  phrase- 
ology, includes  all  of  the  offenses  enumerated  in  the  old  sections. 
3892  was  limited  originally  to  the  taking  of  mail  for  the  purpose 
of  prying  into  the  business  or  secrets  of  another,  and  5469  orig- 
inally was  for  the  taking  of  mail  matter  by  theft  or  other  unlaw- 
ful method  by  any  person  not  employed  in  the  postal  service.  It 
is  only  by  being  familiar  with  Section  5467  and  3891  and  3890, 
as  heretofore  treated,  that  we  conclude  that  5469  related  to  per- 
sons other  than  postal  employees.  Under  the  terms  of  Section 
194,  as  it  now  reads,  one  w^ho,  by  misrepresentation  or  pretense, 
secures  from  a  post-office  mail  directed  and  intended  for  another, 
is  liable  to  the  penalties  of  that  section.  For  instance,  one  who 
calls  for  the  mail  of  another,  representing  that  he  has  authority 
to  receive  the  same,  and  thereafter  commits  unlawful  act  with 
the  mail,  is  subject  to  the  penalty.  The  authorities  cited  supr-a 
in  the  construction  of  Section  195  are  applicable  to  decoy  and 
test  letters  under  5469  of  the  old  statute  or  194  of  the  new  stat- 


POSTAL  CRIMES  7-, 

lite.    The  authority  of  the  United  States  vs.  Meyers,  142  Federal. 
907,  with  reference  to  5469,  seems  to  be  applicable  to  the  needs 
of  an  indictment  and  proof  under  new  Section  194.     The  in- 
dictment must  allege  that  the  stealing,  taking,  or  obtaining  by 
fraud  of  any  letter  or  other  mail  matter  and  the  embezzlement 
of  the  same  or  its  contents  must  be  either  fraudulent  or  unlaw- 
ful, and  an  indictment  which,  leaves  this  open  to  inference  is 
defective.    Thus,  an  indictment  which  by  inference  may  allow  the 
letter  charged  to  have  been  taken  to  have  been  delivered  to  and 
received  by  the  defendant  through  a  mutual  mistake,  is  insuffi- 
cient.    Mail  matter  that  has  been  delivered  by  the  Postal  De- 
partment to  its  address  thereby  passes  from  the  protection  of  the 
Federal  Government.    A  letter  addressed  to  John  Smith,  in  care 
of  Jones,  and  delivered  to  Jones,  and  thereafter  stolen  or  em- 
bezzled or  treated  unlawfully,  cannot  be  made  the  subject  of 
the  above  article.     It  must  still  be  in  the  custody  of  the  Post- 
office  Department  before  one  can  be  prosecuted  under  the  Federal 
statutes  for  an  imauthorized  and  unlawful  act  with  reference 
thereto.     Thus,  a  letter  delivered  by  the  Post-office  Department 
to  the  desk  of  the  addressee,  upon  which  it  was  placed  by  the 
mail  carrier  in  the  absence  of  any  one  to  receive  it,  is  not  pro- 
tected by  any  Federal  statute.    In  United  States  vs.  Safford,  66 
Federal,  942,  one  was  arrested  upon  an  information  charging 
him  with  embezzling  a  letter  containing  an  article  of  value,  which 
had  been  in  the  United  States  Post-office  at  St.  Louis  and  had  not 
been  delivered  to  the  person  addressed,  but  that  the  letter  had 
been  placed  by  the  mail  carrier  upon  the  desk  of  the  addressee, 
from  whence  it  was  stolen  by.  the  defendant.     The  Court  held 
that  Congress  only  intended  to  secure  the  sanctity  of  the  mail 
while  it  was  in  the  custody  of  the  Postal  Department  en  route 
from  the  sender  to  the  person  to  whom  it  was  directed.    Beyond 
the  protection  of  the  mail  while  discharging  the  functions  of 
postal  service  with  respect  to  it,  the  Federal  Government  has  no 
rightful  power  or  legal  concern. 

Thus,  a  letterr  directed  to  a  person,  care  Kimball  House,  when 
delivered  by  a  carrier  at  the  office  of  the  Kimball  House,  is  de- 
livered to  the  person  to  whom  it  was  addressed,  within  the  mean- 
ing of  the  law;  and  the  duty  of  the  postal  authorities  with  re- 


76  POSTAL   CRIMES 

spect  to  such  letter  having  been  fully  performed  in  aeeoniance 
with  the  direction  of  the  sender,  a  subsequent  wrongful  taking 
of  such  letter  by  another  is  not  an  offense  under  said  section,  nor 
one  cognizable  by  the  Courts  of  the  United  States.  United 
States  vs.  Lee,  90  Fed.,  256.  See  also  U.  S.  vs.  McCready,  11 
Fed.,  225. 

It  is  not  thought  that  United  States  vs.  Hilbury,  reported  in 
29  Fed.,  705,  is  good  authority.  The  j^^dge  in  that  case  charged 
the  jury  in  substance  that  a  letter  in  care  of  F.  Kressel,  directed 
to  A,  and  delivered  by  the  mail  carrier  to  Kressel,  and  taken  by 
an  authorized  person  from  Kressel  after  such  deliveiy,  was  a 
violation  of  3892.  Clearly,  the  letter  had  been  delivered,  so  far 
as  the  Postal  Department  was  concerned,  and  the  protection  and 
custody  and  jurisdiction  of  the  United  States  had  ceased.  The 
entire  weight  of  authority  is  against  the  decision  in  29  Federal, 
just  above  cited,  and  the  following  decisions  support  the  doctrine 
of  66  and  90  Federal,  cited  supra: — United  States  vs.  Persons, 
2  Blatchf.,  lOi;  United  States  vs.  Driseoll,  1  Lowell,  303;  U.  S. 
vs.  Sander,  6  McClain,  598;  U.  S.  vs.  Thoma,  28  Fed.  Cases 
16471;  U.  S.  vs.  Huilsman,  94  Fed.,  486;  U.  S.  vs.  McCready, 
cited  supra,  11  Fed.,  225,  must  be  distinguished  from  the  weight 
of  authority,  and  it  is  thought  that  the  learned  judge  there  used 
expressions  ill  advisedly  that  seem  to  support  the  decision  in  the 
29  Federal. 

It  must  also  be  borne  in  mind  that  one  who  secures  lawfully 
from  the  Postal  Department  a  letter  belonging  to  another,  and 
who  thereafter  forms  the  design  to  connnit  an  unauthorized  act, 
as  defined  by  the  statute,  with  reference  thereto,  is  not  amenable 
to  the  Federal  statute.  It  is  true  that  the  intent  is  usually  pre- 
sumed from  the  act  itself,  Reynolds  vs.  U.  S.,  98  U.  S.,  145.  but 
if  it  could  be  clearly  shown  that  the  original  taking  was  lawful 
and  thereafter  the  imlawful  design  was  formed,  the  Federal  of- 
fense would  be  incomplete.  United  States  vs.  Smith,  11  Utah, 
433;  United  States  vs.  Wilson,  44  Fed.,  593;  United  States  vs. 
Inabnet,  41  Fed..  130.  This  intent  should  be  left  to  the  jury  by 
proper  charge,  not  only  when  raised  by  the  evidence  of  the 
defense,  but  upon  the  Government's  case  itself;  in  other  words, 


POSTAL  CRIMES  77 

it  is  a  part  of  the  facts  that  must  be  proven  by  the  Government, 
inferred  though  it  may  be  by  the  jury  from  the  facts  of  the  ease. 
Section  194,  as  now  enacted,  reads  as  follows: 
"Whoever  shall  steal,  take,  or  abstract,  or  by  fraud  or  decep- 
tion obtain,  from  or  out  of  any  mail,  post-office,  or  station  thereof, 
or  other  authorized  depository  for  mail  matter,  or  from  a  letter 
or  mail  carrier,  any  letter,  postal-card,  package,  bag,  or  mail,  or 
shall  abstract  or  remove  from  any  such  letter,  package,  bag,  or 
mail,  any  article  or  thing  contained  therein,  or  shall  secrete,  em- 
bezzle, or  destroy  any  such  letter,  postal-card,  package,  bag.  or 
mail,  or  any  article  or  thing  contained  therein ;  or  whoever  shall 
buy,  receive,  or  conceal,  or  aid  in  buying,  receiving,  or  concealing, 
or  shall  unlawfully  have  in  his  possession,  any  letter,  postal-card 
package,  bag,  or  mail,  or  any  article  or  thing  contained  therein, 
which  has  been  so  stolen,  taken,  embezzled,  or  abstracted,  as  herein 
described.  Im owing  the  same  to  have  been  so  stolen,  taken,  em- 
bezzled, or  abstracted;  or  whoever  shall  take  any  letter,  postal- 
card,  or  package,  out  of  any  post-office  or  station  thereof,  or  out 
of  an.y  authorized  depository  for  mail  matter,  or  from  any  letter 
01   mail  carrier,  or  which  has  been  in  any  post-office  or  station 
thereof,  or  other  authorized  depository,  or  in  the  custody  of  any 
letter  or  mail  carrier,  before  it  has  been  delivered  to  the  person  to 
whom  it  was  directed,  with  a  design  to  obstruct  the  correspond- 
ence, or  to  pry  into  the  business  or  secrets  of  another,  or  shall 
open,  secrete,  embezzle,  or  destroy  the  same,  shall  be  fined  not 
more  than  two  thousand  dollars,  or  imprisoned  not  more  than 
five  years,  or  both. " 

The  following  cases  may  be  of  interest  relating  to  the  original 
three  sections  that  this  section  is  substituted  for: — United 
States  vs.  Trosper,  127  Fed.,  476;  Brown  vs.  United  States,  148 
Fed.,  379;  United  States  vs.  Jones,  80  Fed.,  513;  United  States 
vs.  Hall,  76  Fed..  566;  United  States  vs.  Thomas.  69  Fed.,  588; 
Grimm  vs.  United  States,  156  U.  S.,  604;  Goode  vs.  United  States. 
159  U.  S.,  663;  :\Iontgomery  vs.  United  States,  162  U.  S.,  400: 
Hall  vs.  United  States,  168  U.  S..  632;  Scott  vs.  United  States. 
172  U.  S..  343;  United  States  vs.  Dorsey,  40  Fed..  752;  AValster 
vs.  United  States,  42  Fed..  891;  United  States  vs.  Wilson.  44 
Fed.,  593. 

It  will  be  noticed  that  the  new  section  leaves  out  the  word 
"value"  with  reference  to  any  article  so  contained  in  the  mail 
matter.  It  simply  uses  the  word  "article"  without  stating  that 
the  same  shall  be  of  value,  as  did  the  old  law. 


78  POSTAL  CRIMES 

§  53.  Obscene,  Etc.,  Matter,  Non-mailable,  and  Penalties. — Sec- 
tion 211  of  the  new  Code  reads  as  follows: 

"Every  obscene,  lewd,  or  lascivious,  and  every  filtby  book, 
pamphlet,  picture,  paper,  letter,  writing,  print,  or  other  publi- 
cation of  an  indecent  character,  and  every  article  or  thing  de- 
signed, adapted,  or  intended  for  preventing  conception  or  pro- 
ducing abortion,  or  for  any  indecent  or  immoral  use ;  and  every 
article,  instrument,  substance,  drag,  medicine,  or  thing  which 
is  advertised  or  described  in  a  manner  calculated  to  lead  another 
to  use  or  apply  it  for  preventing  conception  or  producing  abor- 
tion, or  for  any  indecent  or  immoral  purpose ;  and  every  written 
or  printed  card,  letter,  circular,  book,  pamphlet,  adver- 
tisement, or  notice  of  any  kind  giving  information  di- 
rectly or  indirectly  where,  or  how,  or  from  whom,  or  by  what 
means  any  of  the  hereinbefore-mentioned  matters,  articles,  or 
things  may  be  obtained  or  made,  or  where  or  ,by  whom  any  act 
or  operation  of  any  kind  for  the  procuring  or  producing  of  abor- 
tion will  be  done  or  performed,  or  how  or  by  what  means  concep- 
tion may  be  prevented  or  abortion  produced,  whether  sealed  or 
unsealed,  and  every  letter,  packet,  or  package,  or  other  mail  mat- 
ter containing  any  filthy,  vile,  or  indecent  thing,  device,  or  sub- 
stance; and  every  paper,  writing,  advertisement,  or  represen- 
tation that  any  article,  instrument,  substance,  drug,  medicine  or 
thing  may,  or  can  be,  used  or  applied  for  preventing  conception 
or  producing  abortion,  or  for  any  indecent  or  immoral  purpose, 
and  every  description  calculated  to  induce  or  incite  a  person  to 
so  use  or  apply  any  such  article,  instrument,  substance,  drug, 
medicine,  or  thing,  is  hereby  declared  to  be  non-mailable  matter 
and  shall  not  be  conveyed  in  the  mails  or  delivered  from  any  post- 
office  or  by  any  letter  carrier.  "Whoever  shall  knowingly  deposit, 
or  cause  to  be  deposited  for  mailing  or  delivery,  anything  de- 
clared by  this  section  to  be  non-mailable,  or  shall  knowingly  take, 
or  cause  the  same  to  be  taken  from  the  mails,  for  the  purpose  of 
circulating  or  disposing  thereof,  or  of  aiding  in  the  circulation  or 
disposition  thereof,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both.' 

This  takes  the  place  of  3893  of  the  old  statute.  It  contains  one 
word,  the  exact  limits  and  meaning  of  which  when  used  in  crim- 
inal law,  do  not  seem  to  be  well  defined  by  any  line  of  decisions. 
The  word  "filthy,"  as  used  in  the  new  section,  has  never  before 
been  used  in  3893  or  any  of  its  predecessors.  The  Century  Dic- 
tionary defines  filthy  to  mean,  foul,  dirty,  nasty,  polluted,  low, 
contemptible,  mean,  and  gives  as  synonyms,   impure,  corrupt, 


POSTAL  CRIMES  79 

gross.  In  Reg.  vs.  Wood,  5  El.  and  Bl.,  49,  85  E.  C.  L.,  49,  show 
was  held  not  to  be  filthy.  In  United  States  against  Benedict,  165 
Federal,  page  222,  the  Court  said  that  the  present  statute,  (that 
is,  3893),  did  not  protect  against  "'offensive,  filthy,  and  vulgar 
language,'  when  conveyed  by  a  sealed  wrapper,  unless  the  lan- 
guage will  have,  or  may  have,  an  immoral  effect  in  a  sense  relating 
to  sexual  impurity  upon  those  into  whose  hands  the  written  lan- 
guage may  come.  The  Courts  all  along  have  almost  universally 
construed  Section  3893  to  be  directed  against  such  impurity  as 
related  to  sexual  matters  and  gave  rise  to  libidinous  thought.  If 
the  addition  of  the  word  "filthy"  in  the  new  statute  broadens 
the  construction,  it  will  be  welcome  indeed,  because  under  the 
present  authorities,  the  old  section  permitted  a  perfect  sluice  of 
vulgarities  and  coarseness  and  obscenity  to  pass  through  the 
United  States  mails  unchallenged  and  unprosecuted.  For  in- 
stance, the  courts  have  held  that  the  use  of  the  word  "son-of-a- 
bitch"  in  a  sealed  envelope  is  not  an  offense.  It  would  seem  that 
imder  the  dictionary  definition  of  the  word  filthy,  as  quoted 
above,  the  law  would  now  comprehend  the  use  of  the  word  "bitch" 
and  the  phrase  "son-of-a-bitch"  and  "whore"  and  "prostitute" 
and  a  great  many  others  that  are  used  in  an  abusive  way  toward 
the  recipient  of  the  mail.  This,  however,  remains  to  be  seen,  and 
the  construction  of  the  new  statute  will  be  welcomed  if  it  now 
inhibits  the  use  of  such  expressions. 

An  indictment  under  211  must  surely  be  as  certain  in  its  alle- 
gations  as  the  decisions  demanded  under  3893,  and  must,  there- 
fore,  allege  that  the  defendant  knowingly  deposited  or  caused  tc 
be  deposited,  and  the  best  practice  would  seem  to  be  to  allege 
that  he  so  deposited  or  caused  to  be  deposited  with  knowledge  of 
the  contents  or  import  of  the  writing  or  printing,  as  the  case  may 
be.  Such  allegation  is  not  specially  required  under  the  authority 
of  Price  vs.  United  States,  165  U.  S.,  page  308  ;  41  Law.  Ed.,  page 
727,  but  it  is  decidedly  the  best  pleading.  Rosen  vs.  United 
States,  161  U.  S.,  29;  40  Law  Ed.,  606.  The  mailing  of  obscene 
matter  in  answer  to  decoy  requests,  such  requests  being  made  by 
postal  inspectors  for  the  purpose  of  fixing  absolutely  the  guilt 
of  the  sender  or  of  an  advertiser,  are  in  violation  of  the  statute, 
and  may  be  the  basis  of  prosecutions.     Price  against  United 


80  POSTAL   CRIMES 

States,  cited  supra,  and  Rosen  vs.  United  States,  cited  supra; 
Shepherd  vs.  United  States.  160  Federal,  page  584.  The  indict- 
ment must  also  allege  that  the  matter  is  non-mailable.  United 
States  vs.  Clifford,  104  Fed.,  296,  but  the  indictment  need  not 
set  out  the  obscene  matter.  An  allegation  that  the  matter  is  too 
obscene,  lewd,  and  lascivious  to  be  .set  out  and  made  a  part  of 
the  records  of  the  Court  will  satisfy  the  statute.  105  Federal, 
page  59;  Tubbs  vs.  United  States,  94  Fed.,  356;  and  the  Eosen 
and  Price  cases  cited  supra. 

The  old  question  as  to  whether  a  private  sealed  letter  came 
within  the  meaning  of  the  statute  was  definitely  settled  by  the 
Supreme  Court  in  the  case  of  Grimm  vs.  United  States,  156  U. 
S.,  604,  which  was  followed  by  Andrews  vs.  United  States,  162 
U.  S.,  420,  which  distinctly  held  that  the  mailing  of  a  private 
sealed  letter  containing  obscene  matter,  on  the  envelope  of  which 
nothing  appeared  except  the  name  and  address,  was  an  offense 
within  the  meaning  of  the  statute. 

Recurring  again  to  the  sort  of  obscenity  at  which  the  statute 
is  directed,  we  find  the  case  of  Ignited  States  vs.  Lamkin.  73  Fed., 
459,  where  it  was  held  that  the  statute  did  not  punish  for  the 
mailing  of  a  letter  which  was  written  for  the  purpose  of  se- 
duction or  to  obtain  a  meeting  for  an  immoral  purpose,  pro- 
vided such  letter  was  free  from  lewd,  and  indecent  language^ 
expressions,  or  words.  This  case  seems  to  be  in  conflict  with  the 
great  weight  of  authority,  and  with  the  spirit  of  the  statute.  As- 
signations attempted  to  be  made  through  the  TTnited  States 
mail,  however  chaste  the  language,  are  in  direct  violation  of  the 
statute.  United  States  vs.  Martin,  50  Fed.  Rep..  918.  In  the 
Martin  case,  a  letter  from  a  man  to  an  unmarried  woman,  pro- 
posing a  clandestine  trip  to  a  neighboring  town  and  a  return 
the  next  morning,  the  man  to  pay  expenses  and  five  dollars  be- 
sides, was  held  to  be  an  obscene  letter  within  the  meaning  of  the 
Act.  In  line  with  the  Martin  case,  seems  to  be  the  case  of  Dun- 
lop  vs.  United  States,  165  U.  S..  486,  in  w^hich  it  was  held  that 
newspaper  advertisements  giving  information  where  courtesans 
could  be  found,  came  within  the  Act,  although  such  advertise- 
ments were  couched  in  the  most  chaste  and  elegant  language. 
In  Swearingen  vs.  ITpited  States,  161  U.  S.,  446:  40  Law  Ed„ 


POSTAL  CRIMES  81 

765,  the  Supreme  Court  held  that  the  words  "obscene,"  "lewd," 
and  ' '  lascivious, "  as  used  in  the  statute  signified  that  form  of  im- 
morality which  has  relation  to  sexual  impurity,  and  have  the 
same  meaning  given  them  at  Common  Law  in  prosecutions  for 
obscene  libels,  and,  therefore,  do  not  extend  to  language  although 
it  may  be  exceedingly  coarse  and  vulgar,  and  plainly  libelous, 
if  it  has  not  a  lewd,  lascivious,  and  obscene  tendency,  calculated 
to  corrupt  and  debauch  the  mind  and  morals.  This  definition 
supports,  it  would  seem,  the  line  of  authorities  upholding  the 
Martin  decision,  cited  supra,  and  also  limits  the  purpose  of  the 
original  statute  to  such  obscenity.  In  the  Swearingen  case,  the 
prosecution  was  for  the  mailing  of  a  paper  which  contained  the 
coarsest  possible  language  toward  another,  and  the  language 
M'ould  unquestionably  have  been  construed  "filthy,"  had  that 
word  been  included  in  the  statute,  imless  the  Courts  are  to  deter- 
mine that  the  word  "filthy,"  as  used  in  the  new  statute,  was 
purposelessly  used  by  Congress.  To  the  same  effect  is  United 
States  vs.  O'Donnell,  165  Federal,  218;  United  States  vs.  Ben- 
edict, 165  Federal,  221;  Konda  vs.  United  States,  166  Fed.,  91. 
The  question  as  to  whether  the  matter  is  obscene  within  the  mean- 
ing of  the  law,  as  defined  by  the  judge,  must  be  submitted  to  the 
jury.  It  is  quite  true  that  there  are  some  decisions  to  the  con- 
trary, but  all  of  the  reasoning,  as  well  as  the  weight  of  authority, 
seems  to  be  that  the  question  should  be  left  to  the  jury,  because 
it  is  a  question  of  fact.  In  Konda  vs.  United  States,  166  Fed.. 
93,  the  Court  said : 

"In  our  judgment,  a  defendant  in  a  criminal  case  has  the  ab- 
solute right  to  require  that  the  jury  decide  whether  or  not  the 
evidence  sustains  each  and  every  material  allegation  of  the  in- 
dictment. Material  allegations  are  allegations  of  fact,  and  each, 
as  much  as  any  other,  enters  into  a  verdict  of  guilty.  If  the 
judge  may  decide  that  one  or  another  material  allegation  is 
proven,  he  may  decide  that  all  are  proven,  and  so  direct  a  ver- 
dict of  guilty.  In  a  civil  case,  the  judge  may  exercise  the  power 
of  directing' a  verdict  for  the  plaintiff,  when  there  is  no  conflict 
in  the  evidence,  and  the  only  inference  that  can  be  dra\ra  by 
reasonable  minds  as  to  the  ultimate  facts  in  issue  favors  the 
plaintiff.  This  power,  we  opine,  grew  out  of  the  practical  ad- 
ministration of  the  fundamental  power  of  review  on  a  motion  for 
a  new  trial,  the  findings  of  the  jury.     In  the  civil  cases  above 


82  POSTAL  CRIMES 

supposed,  if  the  jury  should  return  a  verdict  for  the  defendant, 
the  judge  would  set  it  aside ;  and  he  would  continue  to  set  aside 
verdicts  in  that  ease  until  one  should  be  returned  that  was  in 
accord  with  the  undisputed  facts;  so  he  cuts  off  the  possibility 
of  useless  verdicts  by  directing  in  the  first  instance,  the  jury  to 
return  the  only  verdict  he  will  let  stand.  But  in  a  criminal  case, 
if  the  jury  returns  a  verdict  for  the  defendant,  the  judge,  no 
matter  how  contrary  to  the  evidence  he  may  think  the  verdict  is, 
cannot  set  it  aside  and  order  a  new  trial.  Therefore,  since  the 
judge  is  without  power  to  review  and  overturn  a  verdict  of  not 
guilty,  there  is  no  basis  on  which  to  claim  the  power  to  direct  a 
verdict  of  guilty.  Our  conclusion  is  that  an  accused  person  has 
the  same  right  to  have  twelve  laymen  pronounce  upon  the  truth 
or  falsity  of  each  material  averment  in  the  indictment,  if  the 
evidence  against  him  is  clear  and  uncontradicted,  as  he  unques- 
tionably would  have  if  it  were  doubtful  and  conflicting.  Inas- 
much as  jurors  are  rightly  trusted  in  close  and  difficult  cases,  to 
maintain  the  peace  and  dignity  of  organized  society,  surely  they 
may  be  relied  on  in  the  plain  and  simple  ones.' 

In  Knowles  vs.  United  States,  170  Federal,  page  410,  the 
Court  assumes  a  similar  position,  and  says : 

''Upon  this  record,  the  only  question  before  us  is,  whether 
the  article  is  obscene,  lewd,  or  lascivious,  within  the  meaning  of 
the  statute.  If  it  was  fairly  open  to  the  construction  of  falling 
within  either  of  these  classes,  it  was  the  plain  duty  of  the  Court 
to  submit  the  question  of  its  character  to  the  jury.  In  all  indict- 
ments under  this  statute,  there  is  a  preliminary  question  for  the 
Court  to  say  whether  the  writing  could,  by  any  reasonable  judg- 
ment, be  held  to  come  within  the  prohibition  of  the  law.  That 
is  like  the  question  of  law  in  a  case  of  negligence,  as  to  whether 
there  is  any  substantial  evidence  of  negligence.  It  leaves  a  wide 
field  for  the  sound,  practical  judgment  of  the  jury  to  determine 
the  true  character  of  the  writing  and  its  probable  effect  upon  the 
minds  of  readers.  Whenever  reasonable  minds  might  fairly  reach 
different  conclusions  as  to  the  character  of  the  writing,  it  is  the 
duty  of  the  Court  to  submit  the  question  to  the  jury," 
and  cites  Rosen  vs.  United  States,  161  U.  S.,  29 ;  United  States 
vs.  Bennett,  16  Blatchf.,  342 ;  United  States  vs.  Davis,  38  Fed., 
326;  United  States  vs.  Harmon,  45  Fed.,  418. 

Under  a  plea  of  not  guilty,  each  and  every'  necessary  element 
alleged  in  the  bill  of  indictment  must  be  proven  beyond  a  rea- 
sonable doubt  by  the  sovereignty,  and  each  of  such  elements,  and 
the  proof  thereof  to  the  measure  indicated,  is  to  the  satisfaction 


POSTAL  CRIMES  83 

of  the  jurj%  and  any  peremptory  charge  against  the  defendant 
is  violative  of  his  rights. 

It  is  entirely  immaterial  that  one  who  mails  impure  matter, 
within  the  meaning  of  the  statute,  has  a  pure  motive ;  if  the  mat- 
ter mailed  is  obscene,  he  is  guilty.  So,  also,  the  freedom  of  re- 
ligion, and  the  freedom  of  the  press,  cannot  be  used  as  defenses 
to  prosecutions  under  these  statutes.-  Knowles  vs.  United  States, 
170  Fed.,  411;  Davis  vs.  Beason,  133  U.  S.,  333;  33  Law 
Ed.,  637. 

In  118  Federal,  page  495,  United  States  vs.  Moblenski,  the 
Court  held  in  substance  that  the  matter  must  tend  to  corrupt  the 
morals  of  the  person  to  whom  it  is  addressed.  This  decision  is 
not  thought  to  be  supported  by  the  best  authority.  The  addressee 
might,  as  a  matter  of  fact,  be  so  morally  obtuse  as  to  be  beyond 
further  injury-  or  corruption,  but  the  letter  might  fall  into  the 
hands  of  innocent  persons ;  and  the  test  is.  whether  the  contents 
would  bring  the  blush  of  shame  to  the  cheek  of  virtue,  not 
whether  the  contents  would  bring  the  blush  of  shame  to  the  cheek 
of  vice.  See  160  Federal,  page  700.  United  States  vs.  Musgrave, 
which  holds  that  the  law  relates  to  the  reading  matter,  and  not 
to  the  state  of  the  mind  of  the  receiver.  Under  the  Common 
Law,  and  for  time  immemorial,  it  was  an  offense  to  utter  obscene 
language  in  public  places,  or  near  a  dwelling  house,  or  in  the 
presence  of  women,  and  the  purpose,  therefore,  of  the  Federal 
statute,  it  would  seem,  is  to  protect  the  innocent  and  pure  against 
having  obscenity  intruded  upon  their  notice. 

The  section,  so  far  as  it  relates  to  the  prevention  of  concep- 
tion and  articles  intended  therefor,  would  require  that  the  bill 
of  indictment  describe  the  thing  advertised.  United  States  vs. 
Pupke.  133  Fed.,  243.  A  somewhat  broader  holding  is  in  United 
States  vs.  Soniers,  164  Fed.,  259.  See  also  Lee  vs.  United  States, 
156  Federal,  948.  It  is  also  held  that  a  corporation  may  violate 
this  section.    United  States  vs.  Herald.  159  Federal,  page  296. 

A  deposit,  under  this  Section,  in  a  United  States  post-office,  is 
a  deposit  in  a  post-office  box.  Shepherd  vs.  United  States,  160 
Fed.,  584. 

By  an  amendment  to  an  Act  in  :\Iay,  1908,  Congress  provided 
that  the  term  "indecent,"  as  used  in  the  old  Section  3893,  shall 


84  POSTAL  CRIMES  ' 

include  matter  of  a  character  tending  to  incite  arson,  murder,  or 
assassination ;  but  it  is  not  thought  that  any  statement  in  the  new 
Code  would  authorize  such  meaning  for  the  word  "indecent"  in 
Section  211.  Federal  Statutes  Annotated,  Supplement  1909, 
page  525.  Other  cases  bearing  upon  this  statute  are  the  follow- 
ing:— Evans  vs.  United  States,  153  U.  S.,  587;  Grimm  vs. 
United  States,  156  U.  S.,  608;  Rinker  vs.  United  States, 
151  Federal,  755;  in  re  Rapier,  143  U.  S.,  110;  Barnes  vs. 
U.  S.,  166  Fed.,  113;  United  States  vs.  Musgrave,  160  Fed.,  700; 
Hansom  vs.  United  States,  157  Fed.,  749 ;  United  States  vs.  Har- 
ris, 122  Fed.,  551;  United  States  vs.  Moore,  104  Fed.,  78;  United 
States  vs.  Chase,  135  U.  S.,  117 ;  United  States  vs.  Reid,  73  Fed., 
289 ;  United  States  vs.  Clark,  43  Fed.,  574. 

Postmark. — In  U.  S.  vs.  Noelke,  1  Fed.  Rep.,  426,  which  ^vas 
followed  in  U.  S.  vs.  Williams,  3  Fed.  484,  the  Court  held  that 
the  postmark  upon  the  envelope  made  a  prima  facia  case  that  the 
letter  had  been  deposited  in  the  United  States  mail. 

§  54.  Libelous  and  Indecent  Wrappers  and  Envelopes,  Etc. — 
Closely  akin,  and  for  the  same  practical  purpose,  to  Section  211, 
is  Section  212  of  the  new  Code.  This  section  was  the  result  of  a 
series  of  acts,  which  resulted  finally  in  the  Act  of  September, 
1888,  First  Supplement,  621,  which  is  practically  identical  with 
the  new  Section  212.  Originally,  scurrilous  epithets  by  the  Act 
of  1872,  on  postal  cards  and  envelopes  were  alone  prohibited.  By 
the  Act  of  March  3,  1873,  the  word  "indecent"  was  added;  by 
the  Act  of  July  12,  1876,  the  words  "lewd,  obscene,  or  lasciv- 
ious" as  adjectives  and  the  words  "delineations,  terms,  or  lan- 
giiage"  as  nouns,  were  inserted;  and  finally,  by  the  Act  of  Sep- 
tember 26,  1888,  Section  212  reads  as  follows: 

"All  matter  otherwise  mailable  by  law,  upon  the  envelope  or 
outside  cover  or  \ATapper  of  which,  or  any  postal  card  upon  which 
any  delineations,  epithets,  terms,  or  language  of  an  indecent, 
lewd,  lascivious,  obscene,  libelous,  scurrilous,  defamatory,  or 
threatening  character,  or  calculated  by  the  terms  of  manner  or 
style  of  display  and  obviously  intended  to  reflect  injuriously'' 
upon  the  character  or  conduct  of  another,  may  be  written  or 
printed  or  otherwise  impressed  or  apparent,  are  hereby  declared 
non-mailable  matter,  and  shall  not  be  conveyed  in  the  mails  nor 
delivered  from  any  post-office  nor  by  any  letter  carrier,  and  shall 


POSTAL  CRIMES  85 

be  withdrawn  from  the  mails  under  such  regulations  as  the  Post- 
master General  shall  prescribe.  "Whoever  shall  knowingly  de- 
posit or  cause  to  be  deposited,  for  mailing  or  delivery,  anything 
declared  by  this  section  to  be  non-mailable  matter,  or  shall  know- 
ingly take  the  same  or  cause  the  same  to  be  taken  from  the  mails 
for  the  purpose  of  circulating  or  disposing  of  or  aiding  in  the 
circulation  or  disposition  of  the  same,  shall  be  fined  not  more 
than  five  thousand  dollars,  or  imprisoned  not  more  than  five 
years,  or  both. ' ' 

Every  decision  and  construction  of  the  Act  of  1888  is  material 
aid  in  understanding  the  present  law.  because,  as  before  stated, 
they  are  practically  identical. 

The  Court  must  submit  to  the  jury  the  determination  of 
whether  or  not  a  delineation  or  other  display  is  calculated  to  re- 
flect injuriously  upon  the  character  of  the  person  addressed. 
The  reasons  for  this  are  just  as  strong  as  those  urged  in  support 
of  the  submission  of  any  other  question  of  fact  upon  a  plea  of 
not  guilty  to  the  jury.  The  Court  cannot  determine,  .as  a  matter 
of  law,  that  any  particular  delineation  or  display  is  in  violation 
of  the  statute.  Of  course,  it  is  not  meant  to  here  indicate  that 
the  Court  may  not  express  his  opinion  thereon.  He  always  has 
this  right. 

In  United  States  vs.  Dodge,  70  Federal,  235,  the  proprietor 
of  a  collection  agency  adopted  a  method  of  proceeding  by  which, 
on  failure  of  debtors  to  pay  on  first  demand,  a  dimning  letter  was 
sent  through  the  mails,  enclosed  in  a  pink  colored  envelope,  and 
if  this  did  not  receive  a  favorable  response,  another  letter  was 
sent  enclosed  in  a  black  envelope,  addressed  in  wliite  letters. 
The  purpose  of  these  letters  was  imiversally  known  to  the  post- 
office  employees.  Having  been  arrested  on  a  charge  of  violation  of 
the  Act  of  September  26,  1888,  in  respect  to  non-mailable  matter, 
he  sued  out  a  writ  of  haheas  corpus,  and  the  Court  held  that  the 
use  of  such  envelopes  was  a  delineation  within  the  meaning  of 
the  statute,  and  that  whether  the  effect  was  to  reflect  injuriously 
upon  the  character  or  conduct  of  the  addressee  was  a  question 
for  the  jury,  upon  a  trial  for  the  offense,  for  which  reasons  the 
prisoner  was  remanded.  While  the  Court  did  not  pass  upon  the 
identical  question  as  to  whether  the  determination  of  the  in- 
jurious character  of  the  delineations  was  for  the  jury,  and  not  the 


86  POSTAL  CRIMES 

Court,  yet  the  decision  is  strongly  persuasive.  In  United  States 
vs.  BrowTi,  43  Federal,  135,  upon  a  demurrer  to  an  indictment 
under  this  statute,  the  Court  said: 

* '  The  respondent  is  indicted  for  depositing  for  mailing  and  de- 
livery matter,  upon  the  envelope  of  which  the  words  'Excelsior 
Collection  Agency  were  printed  in  large  letters,  and  calculated 
by  the  terms  and  style  of  display,  and  obviously  intended  to  re- 
flect injuriously  upon  the  character  and  conduct  of  the  person 
addressed.  .  .  .To  make  a  matter  non-mailable  and  to  constitute 
the  offense,  that  the  delineation  is  calculated  and  obviously  in- 
tended to  so  reflect,  must  be  apparent  from  an  inspection  of  the 
envelope ....  The  manner  of  display  might  indicate  clearly 
whether  the  words  were  placed  there  for  injurious  reflection  upon 
that  person,  or  for  legitimate  transmission  of  the  contents  of  the 
envelope  through  the  mails. .  .Whether  the  display  of  the  words 
upon  the  envelope  would  support  the  averments  of  the  indict- 
ment, would  be  a  question  of  fact  for  a  jury. ' ' 

See  also  United  States  vs.  Olney,  38  Federal,  328. 

What  Is  Outside  Cover  or  Wrapper? — A  very  interesting  and 
vital  question  is  raised  by  the  case  of  the  United  States  vs.  Gee, 
45  Federal,  194,  wherein  the  District  Judge  held,  that,  ''the  stat- 
ute applied  only  to  matter  exhibited  upon  an  enclosing  wrapper 
or  cover  and  not  to  matter  which  is  contained  in  the  body  of  the 
thing  mailed;  that  the  statute  being  one  eonstituing  a  criminal 
offense,  it  cannot  be  extended  by  construction  to  cases  where 
there  is  no  wrapper  at  all,  even  though  such  cases  may  be  within 
the  reason  and  policy  of  the  enactment. ' '  This  decision  w^as  with 
reference  to  a  case  arising  upon  the  mailing  and  delivery  of  a 
large  number  of  four-page  printed  circulars  about  the  size  of  a 
sheet  of  note  paper,  upon  the  four  pages  of  which  was  printed 
matter;  being  an  account  of  certain  dealings  between  the  de- 
fendant and  another;  that  these  circulars,  as  deposited  for  mail- 
ing and  delivery,  had  no  separate  wrapper  or  cover  over  them, 
but  were  folded  twice  into  oblong  shape,  and  the  postage  stamps 
placed  upon  the  circulars  themselves. 

The  evident  purpose  of  the  statute  was  to  prevent  patrons  of 
the  Post-office  Department  from  sending  through  the  mails  such 
matter  as  would  or  might  easily  attract  the  eye  of  the  distributing 
or  handling  clerks,  by  reason  of  its  being  uncovered.  It  is  sub- 
mitted that  an  attack  upon  another  on  a  printed  page  of  a  news- 


POSTAL  CRIMES  87 

paper  or  circular,  upon  which  page  the  clerk  or  clerks  must 
look  to  find  the  address  of  the  one  to  whom  the  paper  is  going 
or  must  be  delivered,  is  as  apt  to  injure  the  addressee  as  though 
the  matter  were  upon  a  postal-card  or  an  envelope,  or  upon  a 
cover  containing  a  newspaper,  and  that  the  one  so  offending 
placed  it  upon  the  outside  for  that  particular  purpose.  The  Cen- 
tury Dictionary,  in  defining  the  word  ' ' cover, ' '  says,  "It  is 
something  which  is  laid,  placed,  or  spread  over,  as  the  cover  of  a 
box,  or  the  cover  of  a  dish,  or  the  cover  of  a  bed,  or  the  cover  of 
a  book."  It  is  thought  that  the  cover  of  a  box,  a  dish,  a  bed,  or 
a  book,  is  a  part  of  the  article  itself,  and  thus,  the  cover  of  <?  box 
is  a  part  of  a  box,  the  cover  of  a  dish  is  a  part  of  the  dish,  the 
cover  of  a  bed  is  a  part  of  the  bed,  and  the  cover  of  a  book  is  a 
part  of  a  book.  In  United  States  against  Burnell,  75  Federal, 
824,  District  Judge  W_olson  distinguishes  the  Gee  case,  and  dis- 
agrees with  it.  The  Burnell  ease  was  an  indictment  against  th(? 
proprietor  of  a  collection  agency  for  having  mailed  and  caused 
to  be  mailed  a  certain  newspaper,  on  the  first  page  of  which  a 
motto  showed  that  its  purpose  was  to  collect  debts,  and  a  large 
part  of  the  paper  contained  notices  warning  the  public  against 
persons  alleged  to  have  failed  to  pay  their  debts  or  asking  infor- 
mation as  to  such  persons.  It  appeared  that  when  an  account 
was  sent  to  the  agency  for  collection,  the  alleged  debtor  was  noti- 
fied that  if  not  paid,  the  account  would  be  advertised  in  such 
newspaper  as  being  for  sale,  and  the  paper  contained  many  such 
advertisements.  It  was  apparent  that  the  object  of  the  paper  was 
to  coerce  the  payment  of  money.  In  mailing  the  paper,  where 
more  than  one  copy  was  to  be  sent  to  the  same  post-office,  the 
name  of  the  persons  to  whom  the  copies  were  to  be  delivered 
were  placed  on  the  front  (outside)  page.  Then  the  papers  for 
the  office  are  rolled  together  in  a  package  in  one  wrapper,  and  on 
that  wrapper  was  written  the  name  of  the  post-office.  When  the 
package  reached  the  post-office,  the  office  employees  tore  off  the 
package  wrapper,  that  they  might  find  the  names  of  the  persons 
to  whom  the  papers  were  to  be  delivered,  and  every  clerk  or 
carrier  attached  to  that  office  through  whose  hands  a  copy  thus 
sent  had  to  pass,  must  look  at  this  front  (outside)  page  to  as- 
certain the  name  of  the  addressee.     Upon  this  state  of  .^acts, 


88  I'OSTAL  CRIMES 

Judge  Woolson  held  that  ' '  if  the  obnoxious  matter  is  on  the  '  out- 
side cover,'  the  statute  is  made  against  its  mailing,  even  though 
such  cover  be  not  an  'enclosing  wrapper  or  cover,'  but  over- 
spreads or  overlays  the  pamphlet  or  paper  mailed. ' ' 

This  opinion  is  interesting  and  exhaustive,  and  clearly  up- 
holds that  construction  of  the  statute  which  makes  it  an  offense 
to  publish  upon  the  outside  page  of  a  newspaper  statements  that 
reHect  injuriously  upon  the  character  of  the  addressee. 

Duns  and  Postal-Cards. — In  United  States  against  Smith,  69 
Federal,  971,  the  following  language  has  been  held  to  come  within 
the  Act,  when  upon  a  postal-card:  ''You  have  been  fighting  time 
all  along.  .  .1  will  garnishee  and  foreclose,  but  I  dislike  to  do  this 
if  you  will  be  half  white. ' '  In  United  States  vs.  Davis,  38  Fed- 
eral, 326,  the  following  was  held  to  be  a  violation:  "You  are 
sharp.  All  of  you  are  on  the  beat."  In  United  States  vs.  Olney. 
38  Federal,  328,  the  Court  submitted  the  following  language  to 
the  jury,  and  the  jury  held  that  it  was  a  violation,  to  wit :  ' '  Mr. 
Editor:  I  thought  that  you  were  publishing  a  paper  for  the 
wheel,  but  I  see  nothing  but  rotten  democracy.  I  am  a  republican 
and  a  wheeler,  and  you  can  take  your  paper  and  democracy  and 
go  to  hell  with  it."  So  also,  the  following  were  held  to  be  viola- 
tions: "Your  rent  was  due  Thursday,  February  25,  1892,  and  has 
not  been  paid,  and  if  not  paid  by  Thursday,  March  3,  1892,  I 
will  place  the  matter  in  the  hands  of  an  officer,"  United  States 
vs.  Elliott,  51  Federal,  807.  "You  have  promised,  and  do  not 
perform,  and  I  see  very  plainly  you  do  not  intend  to  pay  any 
attention  to  my  letters  or  your  agreements,"  U.  S.  vs.  Simmons, 
61  Federal,  640.  In  United  States  vs.  Boyle,  40  Federal,  664, 
the  Court  held  that  this  language,  to  wit,  was  not  a  violation : 
"Please  call  and  settle  account,  which  is  long  past  due,  and  for 
which  our  collector  has  called  several  times,  and  oblige,"  but  in 
the  same  decision  the  Court  held  that  the  statement,  "If  it  is  not 
paid  at  once,  we  shall  place  the  same  with  our  lawyer  for  col- 
lection," was  not  mailable,  and  was  a  violation.  For  other 
cases  bearing  upon  this  section,  see  United  States  vs.  Pratt.  27 
Federal,  Cases  No.  16082;  United  States  vs.  Jarvis.  59  Fed.,  357; 
in  re  Barber,  75,  Federal,  980 ;  United  States  vs.  Smith,  11  Fed., 
663;  ex  parte  Doran,  32  Federal.  76;  U.  S.  vs.  Durant,  46  Fed- 


POSTAL  CRIMES 


89 


eral,  753;  U.  S.  vs.  Loftin,  12  Fed.,  671;  U.  S.  vs.  Elliott    51 
Fed.,  807. 

Of  course,  when  the  matter  is  obscene,  lewd,  or  lascivious,  then 
the  authorities  cited  under  Section  211  are  applicable. 

§  55.  Use  of  the  Mails  for  Fraudulent  Purposes. — The  reliabil- 
ity, speed,  and  universality  of  the  conveniences  of  the  post-office 
establishment  affords  a  revenue-bringing  vehicle  for  the  unscru- 
pulous. Many  sorts  of  frauds  and  schemes  and  artifices  have, 
from  time  to  time,  flourished  for  a  season.  A  proposition  at- 
tractively stated  in  print,  and  addressed  to  a  specific  person, 
seems  to  contain  much  more  magnetism  than  spoken  words  or 
general  advertising.  Just  what  per  cent,  of  the  inhabitants  of 
the  United  States  are  credulous,  has  perhaps  never  yet  been  de- 
termined, but  the  success  of  the  fakir  would  seem  to  indicate  that 
a  very  large  part  of  the  people,  while  they  may  not  believe  every- 
thing they  see,  do  believe  nearly  everything  they  read,  especially 
if  it  be  addressed  directly  to  them.  Section  5480  of  the  old  Code 
was  an  Act  intended  to  bring  to  justice  those  who  made  this  im- 
proper use  of  the  mails.  On  March  2,  1889,  25  Stat,  at  Large. 
873,  I  Vol.  Sup.  694,  this  section  was  amended,  broadening  and 
bettering  it. 

Section  215  of  the  new  Code  contains  all  of  the  elements  of  the 
last  amendment,  \\ath  some  additional  words  and  eliminations 
that  make  the  Act  comparatively  complete.  The  new  Section 
also  makes  the  punishment  commensurate  with  the  offense,  the 
penalties  of  the  old  statute  being  entirely  too  light.  Section 
215  reads  as  follows: 

"Whoever,  having  devised  or  intending  to  devise  any  scheme 
or  artifice  to  defraud,  or  for  obtaining  money  or  property  by 
means  of  false  or  fraudulent  pretenses,  representations  or  prom- 
ises, or  to  sell,  dispose  of,  loan,  exchange,  alter,  give  away,  dis- 
tribute, supply,  or  furnish  or  procure  for  unlawful  use  any 
counterfeit  or  spurious  coin,  bank  note,  paper  money,  or  any 
obligation  or  security  of  the  TJnited  States,  or  of  any  State,  Ter- 
ritory, municipality,  company,  corporation,  or  person,  or  any- 
thing represented  to  be  or  intimated  or  held  out  to  be  such 
counterfeit  or  spurious  article,  or  any  scheme  or  artifice  to  ob- 
tain money  by  or  through  correspondence,  by  what  is  commonly 
called  the  'saw^-dust  swindle'  or  ' coimterf eit-money  fraud,'  or 
by  dealing  or  pretending  to  deal  in  what  is  commonly  called 


90  POSTAL  CRIMES 

'green  articles,'  'green  coin,'  'green  goods,'  'bills,'  'paper  goods,' 
'spurious  Treasury  notes,'  'United  States  goods,'  'green  cigars,' 
or  any  other  names  or  terms  intended  to  be  understood  as  relating 
to  such  counterfeit  or  spurious  articles,  shall,  for  the  purpose  of 
executing  such  scheme  or  artifice  or  attempting  to  do  so,  place, 
or  cause  to  be  placed,  any  letter,  postal  card,  package,  writing, 
circular,  pamphlet,  or  advertisement,  whether  addressed  to  any 
person  residing  within  or  outside  the  United  States,  in  any  post- 
office,  or  station  thereof,  or  street  or  other  letter  box  of  the  United 
States,  or  authorized  depository  for  mail  matter,  to  be  sent  or 
delivered  by  the  post-office  establishment  of  the  United  States,  or 
shall  take  or  receive  any  such  therefrom,  whether  mail- 
ed within  or  without  the  United  States,  or  shall  know- 
ingly cause  to  be  delivered  by  mail  according  to  the  di- 
rection thereon,  or  at  the  place  at  which  it  is  directed  to  be 
delivered  by  the  person  to  whom  it  is  addressed,  any  such  letter, 
postal  card,  package,  writing,  circular,  pamphlet,  or  advertise- 
ment, shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both. ' ' 

Elements  of  the  Offense. — The  indictment  must  charge,  and  the 
proof  must  show,  (a)  the  devising  of  a  scheme  or  artifice  to  de- 
fraud; (b)  that  such  scheme  or  artifice  to  defraud  is  to  be 
effected  by  opening  or  intending  to  open  correspondence  with 
such  other  person  or  persons  through  the  post-office  establish- 
ment or  by  inciting  such  other  persons  to  open  connnunication 
with  them;  and,  (c)  that  a  letter  or  packet  or  some  other  mail 
matter  enumerated  in  the  statute  must  be  deposited  or  caused 
to  be  deposited  for  mailing  and  delivery  in  the  United  States 
mail.  United  States  vs.  Long,  68  Fed.,  348;  Milby  vs.  U.  S., 
109  Fed.,  638;  U.  S.  vs.  Post,  113  Fed.,  852;  Horman  vs.  U.  S., 
116  Fed.,  350;  Hume  vs.  U.  S.,  118  Fed.,  689;  Stuart  vs.  U.  S., 
119  Fed.,  89;  Ewing  vs.  U.  S.,  136  Fed.,  53;  Brown  vs.  U.  S., 
143  Fed.,  60;  Rumble  vs.  U.  S.,  143  Fed.,  772. 

Whether  the  element  which  I  have  called  "  b "  is  to  be  present 
in  violations  under  the  section,  remains  to  be  seen,  because  the 
old  section  differed  from  the  new  in  that  the  old  contained  the 
words  "to  be  effected  by  either  opening  or  intending  to  open 
correspondence  or  communication  with  any  person,  ...  or  by 
inciting  such  person  or  any  person  to  open  communication  with 
the  person  so  devising  or  intending,"  which  the  new  does  not 
contain.    The  new  section  simply  demands,  (1)  the  formation  of 


POSTAL  CRIMES  91 

a  scheme  or  artifice  to  defraud;  (2)  ''shall  for  the  purpose  of 
executing  such  scheme  or  artifice,  . .  .  place  or  cause  to  be  placed, 
any  letter,  etc.,.  .  .to  be  sent  or  delivered  by  the  post-office  estab- 
lishment." It  thus  would  seem,  in  the  absence  of  the  words 
"other  person,"  that  one  might,  in  the  execution  of  a  scheme  to 
defraud,  wherein  the  use  of  the  mails  was  contemplated,  as  re- 
quired by  the  statute,  devise  a  scheme,  within  the  meaning  of 
the  statute,  so  as  to  subject  himself  to  the  penalty  of  the  statute, 
and  only  use  the  mail  in  addressing  communications  to  himself. 
This  was  not  possible  under  the  old  statute.  In  Erbaugh  vs. 
United  States,  173  Fed.,  434,  the  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit  held  that  one  who  devises  a  fraudulent  scheme 
to  be  effected  by  opening  or  intending  to  open  correspondence 
or  communication  with  himself,  by  means  of  the  post-office  es- 
tablishment of  the  United  States,  is  guilty  of  no  offense  under 
5480.  The  elements,  therefore,  of  an  indictment  under  the  new 
statute,  are  the  same  as  those  under  the  old  statute,  with  the 
possible  exception,  as  indicated  above,  that  one  may,  under  the 
new  statute,  be  guilty  of  the  offense,  even  though  he  use  the  mail 
only  for  the  purpose  of  addressing  himself,  and  not  for  address- 
ing his  intended  victim  or  victims. 

Broadly  speaking,  the  section  "includes  everything  designed 
to  defraud,  by  representations  as  to  the  past  or  present,  or  sug- 
gestions and  promises  as  to  the  future.  The  significant  fact  is 
the  intent  and  purpose.  ...  It  was  with  the  purpose  of  protecting 
the  public  against  all  such  intentional  efforts  to  despoil  and  to 
prevent  the  post-office  from  being  used  to  carry  them  into  effect, 
that  this  statute  was  passed;  and  it  would  strip  it  of  value  to 
confine  it  to  such  cases  as  disclose  an  actual  misrepresentation 
as  to  some  existing  fact,  and  exclude  those  in  which  is  only  the 
allurement  of  a  specious  and  glittering  promise. ' '  5  Fed.  Stats. 
Durland  vs.  United  States,  161  U.  S.,  306.  See  also  Horman  vs. 
U.  S.,  116  Fed.,  350.  In  U.  S.  vs.  Sherwood,  177  F.,  596,  Court 
simplifies  indictment.  In  Foster  vs.  U.  S.,  178  F.,  165,  C.  C.  A., 
held  scheme  need  not  be  repeated  in  second  and  succeeding 
counts,  if  laid  well  in  first  and  appropriately  referred  to. 

Threatening  letter. — A  scheme  to  extort  money  by  threatening 
to  injure  the  reputation  and  character  of  others  by  accusing 


92  POSTAL  CRIMES 

them  of  heinous  crimes  in  default  of  payment  of  a  large  sum  of 
money  to  the  accusing,  is  a  scheme  to  defraud,  within  the  mean- 
ing of  this  section.  Fed.  Stats.  Ann.,  5,  page  976.  Horman  vs. 
United  States,  116  Fed.,  350,  which  affirms  the  lower  court  in 
the  case  of  the  United  States  vs.  Horman,  118  Fed.,  780. 

Matrimonial  agency,  good  indictment,  see  Grlinn  vs.  U.  S., 
177  F.,  679. 

Ordering  Goods  Without  Intention  to  Pay. — A  fruitful  source 
of  revenue  for  this  class  of  frauds  has  been  the  use  of  the  mails 
in  ordering  goods  and  merchandise,  for  which  they  did  not  in- 
tend to  pay.  The  Courts  have  very  justly  held  that  such  acts 
evidence  the  formation  of  a  scheme  within  the  meaning  of  this 
section,  and  the  intent  to  not  pay  is  drawn  from  the  facts  of  the 
particular  case,  as,  for  instance,  misrepresentation  as  to  the  sol- 
vency of  the  person  or  firm  ordering,  misstatement  as  to  the  sort 
of  business  engaged  in,  speedy  sale  of  the  goods  and  merchandise 
when  received  at  a  price  below  cost  or  at  cost,  and  other  facts 
that  evidence  no  legitimate  intent  to  engage  in  a  legitimate 
business.  United  States  vs.  Woodson,  35  Fed.,  358;  United 
States  vs.  Staples,  45  Fed.,  195.  It  must  be  borne  in  mind  that 
the  intent  not  to  pay  must  exist  before  the  credit  is  sought — must 
precede  the  order  for  the  goods.  United  States  vs.  Wootten,  29 
Fed.,  702. 

In  United  States  vs.  Evans,  153  U.  S.,  584,  Mr.  Justice 
Brown  says: 

"If  a  person  buys  goods  on  credit  in  good  faith,  knowing 
that  he  is  unable  to  pay  for  them  at  the  time,  but  believing  that 
he  will  be  able  to  pay  for  them  at  the  maturity  of  the  bill,  he  is 
guilty  of  no  offense,  even  if  he  be  disappointed  in  making  such 
payment.  But  if  he  should  purchase  them  knowing  that  he  will 
not  be  able  to  pay  for  them,  and  with  an  intent  to  cheat  the 
vendor,  this  is  a  plain  fraud,  and  made  punishable  as  such  by 
statutes  in  many  of  the  states." 

Indictment. — It  is  absolutely  necessary  that  the  indictment 
allege  the  sort  of  a  scheme  or  artifice,  which  sort  must  include 
a  determination  to  use  the  Post-office  establishment,  and  in  addi- 
tion must  allege  that  the  defendant  deposited  or  caused  to  be 
deposited  in  the  Post-office  for  mailing  and  delivery,  mail  matter, 
in  pursuance  of  the  scheme. 


POSTAL  CRIMES  93 

It  is  true  that  proof  under  this  allegation  will  support  a  con- 
viction if  it  shows  that  the  defendants  agent  deposited  the  mat- 
ter, and  this  even  though  the  defendant  may  have  been  in  an- 
other district.  In  Hume  vs.  United  States,  118  Federal,  689, 
which  was  a  case  under  the  old  statute,  when  the  punishment 
made  the  oifense  a  misdemeanor.  Judge  Shelby,  speaking  for  the 
Circuit  Court  of  Appeals,  held  that  even  assuming  that  the  of- 
fense is  a  felony,  the  presence  of  the  defendant  at  the  time  the 
letters  are  mailed,  in  furtherance  of  a  scheme  denounced  by  the 
statute,  is  not  necessary  to  make  him  a  principal  in  the  crime. 
So,,  also,  in  United  States  vs.  Fleming,  18  Federal,  907,  it  was 
held  that  it  was  not  necessary,  in  order  to  make  out  the  offense, 
that  the  defendant  actually,  with  his  owti  hands,  placed  a  letter 
or  packet  in  the  post-office.  If  the  proof  show  that  it  was  done 
through  his  agency  or  direction,  by  an  agent  or  employee,  em- 
ployed and  directed  for  that  purpose,  it  is  sufficient  to  meet  the 
allegations  of  the  bill  and  the  demands  of  the  statute. 

It  should  also  be  borne  in  mind  in  this  connection  that  under 
the  authorit.y  of  United  States  vs.  Loring,  91  Federal,  881, 
which  seems  to  have  been  generally  followed,  it  is  not  necessary 
to  set  out  all  of  the  letters  in  full  in  the  indictment,  nor  to  give 
the  substance  of  their  contents ;  nor  is  it  necessary  that  it  should 
appear  from  the  letters  that  they  were  part  of  the  fraudulent 
scheme.  The  indictment  may  make  a  general  allegation  that 
there  were  various  and  simdry  and  divers  letters  deposited  and 
caused  to  be  deposited  to  divers  and  sundry  persons  to  the  grand 
jurors  unkno"\\'n.  if  such  allegations  be  true,  and  then  set  out 
particularly  and  accurately  one  letter,  and  if  the  defense  desires 
to  know  the  names  and  addresses  upon  the  letters  covered  in  the 
blanket  portion  of  the  indictment,  they  may  obtain  the  same 
from  the  prosecuting  officer  by  a  proper  request  for  a  l)ill  of 
particulars,  addressed  to  the  Court. 

A  letter  set  out  particularly  in  the  indictment  will  support  a 
charge  under  the  statute,  even  though  the  letter  may  be  ever  so 
formal,  provided  the  letter  was  sent  by  the  defendant  with  a 
view  of  executing  his  scheme  to  defraud.  Durland  vs.  United 
States,  161  U.  S.,  306.  Letters,  however,  which  do  not  seem  to 
have  been  written  for  the  purpose  of  accomplishing  any  fraud. 


94  POSTAL  CRIMES 

are  not  an  offense,  of  course.  United  States  vs.  Ryan.  123  Fed., 
634;  United  States  vs.  Owens,  17  Fed.,  72;  Stewart  vs.  U.  S.. 
119  Fed.,  89.  Similar  letters  to  the  one  set  out  in  the  bill  are 
always  competent  testimony,  and  may  be  introduced  on  the 
question  of  intent.  United  States  vs.  Watson,  35  Fed.,  358;  and 
under  the  authority  of  the  United  States  vs.  Sauer,  88  Fed..  249. 
the  venue  of  the  prosecution  is  determined  by  the  point  of  mail- 
ing the  letter  or  the  packet,  and  prosecution  must  be  had  in  the 
district  in  which  the  letter  or  packet  was  mailed.  The  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit,  speaking  through  Judge 
Wolverton.  in  Walker  vs.  United  States.  152  Fed.,  HI,  deter- 
mined that  all  letters  intended  in  some  way  to  be  utilized  in  con- 
nection with  the  scheme,  are  admissible,  and  quotes  in  support 
of  that  doctrine,  the  expression  of  Justice  Brewer  in  the  Dur- 
land  case,  cited  supra,  in  these  words : 

"We  do  not  wish  to  be  understood  as  intimating  that  in  order 
to  constitute  the  offense,  it  must  be  shown  that  the  letters  so 
mailed  were  of  a  nature  calculated  to  be  effective  in  carrying  out 
the  fraudulent  scheme.  It  is  enough  if,  after  having  devised  a 
scheme  to  defraud,  the  defendant,  with  a  view  to  execute  it, 
deposits  in  the  post-office  letters  which  he  thinks  may  assist  in 
carrying  it  into  effect,  although,  in  the  judgment  of  the  jury, 
they  may  be  absolutely  ineffective  therefor." 

In  Lemon  vs.  United  States,  164  Federal,  953,  Circuit  Judge 
Adams,  speaking  for  the  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit,  said: 

''The  contention  that  the  statements  and  letters  set  out  in  the 
several  coimts  of  the  indictment  negative  the  alleged  fraudulent 
scheme,  cannot  be  sustained.  The  mailing  of  a  letter  in  the  exe- 
cution or  attempted  execution  of  a  fraudulent  scheme,  is  the 
gist  of  the  offense  denounced  by  the  statute.  It  is  that  act,  and  it 
alone,  which  confers  jurisdiction  upon  the  Courts  of  the  United 
States  to  pimish  devisors  of  fraudulent  schemes.  The  letter 
which  is  mailed  is  not  required  to  recite  the  whole  scheme  or  be 
in  itself  effective  to  execute  it.  All  that  is  imperatively  required 
is  that  the  letter  mailed  should  be  one  calculated  or  designed  to 
aid  or  assist  in  the  execution  or  attempted  execution  of  a  scheme 
or  device. ' ' 

The  Circuit  Court  of  Appeals  for  the  Third  Circuit  quotes 
with  approval  m  re  Henry,  123,  U.  S.,  373,  followed  in  De  Barr, 


POSTAL  CRIMES  95 

179.  U.  S.  320,  the  following:  "The  Act  forbids,  not  the  general 
use  of  the  post-office  for  the  purpose  of  carrying  out  a  fraudu- 
lent scheme  or  device,  but  the  putting  in  the  post-office  of  a  let- 
ter or  packet,  or  the  taking  out  of  such  a  letter  or  packet  from 
the  post-office  in  furtherance  of  such  a  scheme.  Each  letter  so 
taken  out  or  put  in  constitutes  a  separate  and  distinct  violation. ' ' 
Miller  vs.  United  States. — The  Circuit  Court  of  Appeals  for  the 
Seventh  Circuit,  in  the  case  of  Miller  vs.  U.  S.,  174  Fed.,  35, 
seems  to  run  dangerously  near  an  antagonistic  decision  to  the 
Durland  case,  decided  by  the  Supreme  Court,  cited  swpra.  It 
is  true  that  the  Miller  case  holds  that  the  indictment  charged  no 
offense  because  it  did  not  charge  that  the  stock  sold  was  not 
worth  the  price  paid  for  it,  but  the  decision  in  reaching  this  par- 
ticular point,  which  it  decides,  contains  many  expressions  that 
might  lead  the  practitioner  to  infer  a  dangerous  broadness  as  to 
what  is  not  comprehended  within  the  meaning  of  the  statute.  It 
is  true  that  all  the  decisions  are  a  unit  upon  the  proposition  that 
there  must  be  an  intention  to  injure  the  person  addressed  or 
sought  to  be  reached,  by  defrauding  him  of  something  which  he 
already  has,  but  it  must  be  equally  ever  present  in  one's  mind 
that  the  statute  inhibits  the  formation  of  a  scheme  or  artifice  to 
defraud,  wherein  misrepresentations  are  made  through  the  Uni- 
ted States  mail  for  the  purpose  of  securing  something  of  value 
from  the  person  to  whom  such  representations  are  made.  In  the 
Miller  case,  the  devisor  of  the  scheme  to  defraud  was  the  Pres- 
ident of  a  corporation.  The  corporation  decided  to  increase  its 
capital  stock  from  $250,000  to  $400,000.  The  corporation  was 
an  actual  manufacturer,  employing  from  one  hundred  to  one 
hundred  fifty  men,  the  plant  and  good  will  of  which  was  worth 
many  thousands  of  dollars.  The  defendant  represented  through 
the  mails,  for  the  purpose  of  selling  this  increased  stock,  that 
the  corporation  desired  to  open  branch  houses  for  the  sale  of  its 
goods  and  to  employ  therein  managers  at  fixed  salaries,  besides 
a  share  of  the  profits,  and  that  the  company  was  earning  a  profit 
of  twenty  per  cent,  and  paying  six  per  cent,  divident  to  holders 
of  its  stock  out  of  its  net  earnings ;  that  as  a  matter  of  fact  the 
company  was  not  earning  twenty  per  cent.,  or  any  per  cent., 
and  was  not  paying  any  dividends;  that  pursuant  to  these  rep- 


96  POSTAL  CRIMES 

resentations,  the  stock  was  sold  in  blocks  of  five  thousand  dol- 
lars each. 

I  do  not  fuss  with  the  Court  for  determining  that  the  indict- 
ment should  have  alleged  that  the  stock  was  not  worth  what  the 
purchasers  paid  therefor,  but  it  does  seem  to  me  that  the  allega- 
tions otherwise  contained  a  full  and  complete  statement  of  such 
a  case  as  comes  easily  within  the  meaning  of  the  statute.  There 
was  a  determination  to  increase  the  stock;  the  determination  to 
increase  the  stock  was  due  to  the  fact  that  the  defendant  needed 
money.  In  order  to  realize  the  money,  representations  were 
made  with  reference  to  the  earning  capacity  of  the  plant,  which, 
therefore,  conrolled  the  value  of  the  stock,  and  made  it  desirable 
or  imdesirable.  The  representations  made  with  reference  to 
the  stock  and  the  plant,  its  earning  capacity,  and  dividends, 
were  untrue  and  false,  and  made  through  the  United  States  mail. 
It  is  not  thought  that  any  safe  counselor  would  advise  his  client 
to  engage  in  a  similar  enterprise. 

Punishment  and  Number  of  Counts. — That  paragraph  of  the 
1889  Amendment,  which  related  to  the  number  of  offenses  com- 
mitted within  a  certain  given  time,  and  which  was  construed  in 
Hall  vs.  United  States,  152  Federal,  page  420,  and  which  has 
been  the  occasion  of  some  difference  of  opinion,  is  not  entered 
into  this  statute.  Late  decisions,  however,  upon  that  old  sec- 
tion, are  the  following:  United  States  vs.  McVickar,  164  Fed- 
eral, 894;  Lemon  vs.  United  States,  164  Fed.,  953. 

A  consideration  of  the  following  cases,  for  the  purpose  of  find- 
ing illustrations  of  the  effectiveness  and  limitation  of  the  statute, 
will  be  interesting:  United  States  vs.  Smith,  166  Fed.,  958;  U. 
S.  vs.  Raish,  163  Fed.,  911;  Faulkner  vs.  U.  S.,  157  Fed.,  840; 
U.  S.  vs.  Dexter,  154  Fed.,  890;  Booth  vs.  U.  S.,  154  Fed.,  836: 
Gourdain  vs.  U.  S.,  154  Fed.,  453;  Dalton  vs.  U.  S.,  154  Fed.,  61 ; 
Francis  vs.  U.  S.,  152  Fed.,  155;  Van  Dusen  vs.  U.  S.,  151  Fed., 
989;  U.  S.  vs.  White,  150  Fed.,  379;  Brooks  vs.  U.  S.,  146  Fed., 
223;  U.  S.  vs.  Hess,  124  U.  S.,  483;  in  re  Henry,  123  U.  S.,  372; 
Stokes  vs.  U.  S.,  157  U.  S.,  187;  Streep  vs.  U.  S.,  160  U.  S.,  128; 
Brown  vs.  U.  S.,  143  Fed.,  60;  U.  S.  vs.  Etheridge,  140  Fed.. 
376;  Betts  vs.  U.  S.,  132  Fed.,  228;  Packer  vs.  U.  S.,  106  Fed. 
906;  Tingle  vs.  U.  S.,  87  Fed.,  320;  U.  S.  vs.  Smith,  45  Fed.,  561. 


POSTAL  CRIMES  97 

§  56.  The  Civil  Statute.— Section  3929  of  the  old  statute,  amend- 
ed by  the  Fifty-first  Congress,  as  sho^vTi  at  page  804  of  the  first 
Volume  of  the  Supplement,  Act  of  September  19,  1890,  gives 
the  Postmaster  General  power  to  deny  the  use  of  the  United 
States  mails  to  those  conducting  fraudulent  schemes.  Interest- 
ing cases  growing  out  of  the  exercise  of  such  power  are  Missouri 
Drug  Company  vs.  Wyman,  129  Fed.,  623,  which  recites  ex- 
haustively and  learnedly  eases  bearing  upon  this  question,  and 
mentions  and  distinguishes  the  leading  case  of  Magnetic  Healing 
vs.  McAnulty,  137  U.  S.,  94;  47  Law  Ed.,  90;  Donnell  Company 
vs.  Wyman,  156  Federal.  415;  Appleby  vs.  Chiss,  160  Fed.,  984; 
Putnam  vs.  Morgan.  172  Fed.,  450.  The  weight  of  authority 
under  this  statute  seems  to  be  that  a  Court  will  inquire  into  the 
evidence  that  was  submitted  to  the  Postmaster  General,  and 
upon  which  that  official  acted,  but  will  not  determine  the  weight 
of  the  evidence.  The  Postmaster  General,  being  in  the  Execu- 
tive Department  of  the  Government,  and  empow^ered  with  cer- 
tain duties  that  involve  judgment  and  discretion,  is  not  bound  by 
the  discretion  and  judgment  of  the  Courts,  provided  he  have 
before  him  evidence  upon  which  to  base  his  act. 

More  is  not  said  with  reference  to  this  statute  and  this  inter- 
esting jurisdiction  of  the  Post-office  Department,  for  the  reason 
that  its  discussion  does  not  belong  in  this  work,  it  relating  to 
civil  remedies. 

§  57.  Fraudulently  Assuming  Fictitious  Address  or  Name. — The 
meat  of  Section  216  in  the  new  Code  was  an  Amendment  to  the 
old  Section  5480  of  the  Revised  Statutes,  and  was  an  Act  of  the 
Second  of  March,  1889,  25  St.  L..  873;  First  Supplement,  695. 

In  the  new  Code,  however,  the  assumption  of  a  fictitious,  false, 
or  assumed  title,  name,  or  address,  for  the  purpose  of  conduct- 
ing, prompting,  or  carrying  on  in  any  manner,  by  means  of  the 
Post-office  establishment,  any  scheme  or  device  mentioned  in 
Section  215  of  the  new  Code,  or  any  other  unlawful  business,  is 
made  a  separate  section. 

The  same  punishment,  however,  is  carried  for  violations  of 
this  section  as  that  provided  for  violations  of  Section  215. 

It  is  not  sufficient,  imder  this  section,  that  one  assume  a  false 
or  fictitious  name  or  title  to  carry  on  a  biLsiness,  unless  sucl^ 


93  POSTAL   CRIMES 

business  be  unlawful  or  denounced  by  the  terms  of  Section  215. 
In  other  words,  a  business  that  is  lawful  in  itself,  even  though 
conducted  imder  an  assumed,  fictitious,  or  false  name,  and  though 
furthered  through  the  post-office  establishment,  would  not  be  an 
offense  under  this  statute.  In  United  States  vs.  Smith,  45  Fed- 
eral, 561,  in  passing  upon  a  case  where  a  person  devised  a 
scheme  which  contemplated  that  he  should  assume  the  role  of  a 
Chinese  physician  and  pretend  to  possess  curative  power,  and 
to  be  able  to  minister  to  those  ailed  certain  Chinese  herbs,  but 
who  in  fact  never  fitted  up  such  apartments,  nor  put  into  ex- 
ecution the  scheme,  other  than  to  make  such  representations,  the 
Court  held  that  the  business  must  be  specifically  charged  and  its 
imlawful  character  disclosed,  for  it  is  not  an  offense,  within  the 
statute,  to  assume  a  fictitious  name  in  a  lawful  business. 

In  Tingle  vs.  United  States,  87  Federal,  320,  the  Circuit 
Court  of  Appeals  for  the  Fifth  Circuit  held  that  the  indictment 
was  defective,  because  it  failed  to  allege  in  appropriate  words 
that  the  alias  and  fictitious  and  false  name  set  out  in  the  in- 
dictment, to  wit.  Otho  Aronson.  was  not  in  fact  the  name  of  a 
real  person,  and  imder  this  allegation  in  the  bill,  the  Court 
charged  the  jury  that  they  could  convict  the  defendant  whether 
or  not  Aronson  was  a  real  person,  and  this  charge  the  Court 
held  to  be  erroneous. 

In  other  words,  the  decision  would  seem  to  indicate,  though 
it  does  not  so  decide,  that  to  be  entirely  safe,  the  prosecution 
must  satisfy  itself  that  the  assumed  name  is  not  in  reality  the 
name  of  some  actual  person  before  it  chooses  to  make  the  allega- 
tion in  the  bill.  If  the  assumed  name  were  in  fact  the  name  of 
a  genuine  person,  then  it  is  thought  that  the  bill  could  not 
allege,  and  stand  the  test,  that  the  name  so  used  for  the  unlaw- 
ful business  was  in  fact  fictitious  and  false.  There  should  be  ap- 
propriate allegations  under  a  different  portion  of  the  law,  or 
rather,  as  the  law  now  stands,  the  case  would  be  a  fraudulent  use 
of  the  mail,  under  Section  215,  instead  of  Section  216. 

§  58.  Lottery,  Gift-Enterprise,  Etc.,  Circulars,  Etc.,  Not  Mail- 
able.—Thomas,  in  his  interesting  volume  which  treats  exhaust- 
ively some  postal  offenses  which  include  lottery  violations,  calls 
our  attention  to  the  fact  that  the  lottery  as  a  method  of  gambling 


POSTAL  CRIMES 


99 


has  prevailed  from  the  remotest  antiquitj-.  In  England.  Italy, 
France.  Germany.  Austria.  Spain.  Holland.  Denmark.  Japan, 
China.  Mexico,  and  many  of  the  South  American  Republics,  lot- 
teries not  only  have  flourished,  but  still  live  and  thrive.  The 
life  of  the  lottery  in  the  United  States  was  active  and  fortime 
producing.  The  public  conscience,  however,  first  pricked  in 
snme  of  the  old  coimtries.  notably  England,  aroused  itself  in 
the  United  States,  and  various  state  legislatures  attempted  to 
rid  this  countrj'  of  this  system  of  gambling.  It  was  not  imtil 
1872.  however,  that  Congress  took  a  hand  in  the  tight,  giving  us 
Section  3894  of  the  old  Statute,  which,  while  a  move  in  the  right 
direction,  was  rather  pimy.  and  not  at  all  strong  enough  to  com- 
bat the  gigantic  power  and  force  of  the  deep-rooted  evil.  Later. 
September  19.  1890.  26  St.  L..  465.  First  Volume  Supplement. 
808.  came  a  substitute  for  3894.  imder  which  much  effective 
prosecution  was  had.  On  March  2.  1895.  28  St.  L..  963.  Second 
Volume  Supplement.  435.  came  an  assisting  and  auxiliary  Act. 
which  left  in  force  all  of  the  old  statutes,  and  provided  some 
new  provisions.  This  was  the  last  lottery  act  before  the  new 
code.  Under  this  legi.slation.  the  lottery-,  and  practically  every 
other  scheme  invohnng  a  chance  or  draw,  has  been  driven  from 
this  country.  The  law  inhibits  the  passing  of  lottery  matter 
either  through  the  mails  or  by  any  private  carrier  from  one 
state  to  another,  or  from  another  coimtrA-  to  the  United  States, 
or  from  the  United  States  to  another  coimtr^".  The  sending  of 
lottery  matter,  as  defined  in  the  statute,  which  includes  letters 
or  circulars  or  any  sort  of  an  advertisement  relating  thereto,  by 
any  of  the  post-otfice  facilities,  for  never  so  short  a  distance,  is 
a  \-iolation :  the  sending  of  any  such  matter  by  private  convey- 
ance from  one  state  to  another  state,  or  across  the  border  from 
one  country-  to  another  coimtiy.  is  a  violation. 
The  new  law,  or  Section  215.  reads  as  follows: 

"Xo  letter,  package,  postal  card,  or  circular,  concerning  any 
lottery-,  gift  enterprise,  or  similar  scheme  offering  prizes  de- 
pendent in  whole  or  in  part  upon  lot  or  chance :  and  no  lottery 
ticket  or  part  thereof,  or  paper,  certificate,  or  instrument  pur- 
porting to  be  or  to  represent  a  ticket,  chance,  share,  or  interest 
in  or  dependent  upon  the  event  of  a  lottery-,  gift  enterprise  or 
similar  scheme  offering  prizes  dependent  in   whole  or  in  part 


100  POSTAL  CRIMES 

upon  lot  or  chance ;  and  no  check,  draft,  bill,  money,  postal  note, 
or  money  order,  for  the  purchase  of  any  ticket  or  part  thereof, 
or  of  any  share  or  chance  in  any  such  lottery,  gift  enterprise, 
or  scheme ;  and  no  newspaper,  circular,  pamphlet,  or  publication 
of  any  kind  containing  any  advertisement  of  any  lottery,  gift 
enterprise,  or  scheme  of  any  kind  offering  prizes  dependent  in 
whole  or  in  part  upon  lot  or  chance,  or  containing  any  list  of 
the  prizes  drawn  or  awarded  by  means  of  such  lottery,  gift  en- 
terprise, or  scheme,  whether  such  list  contains  any  part  or  all  of 
such  prizes,  shall  be  deposited  in  or  carried  by  the  mails  of  the 
United  States,  or  be  delivered  by  any  postmaster  or  letter  car- 
rier. "Whoever  shall  knowingly  deposit  or  cause  to  be  deposited, 
or  shall  knowingly  send  or  cause  to  be  sent,  anything  to  be  con- 
veyed or  delivered  by  mail  in  violation  of  the  provisions  of  this 
section,  or  shall  knowingly  deliver  or  cause  to  be  delivered  by 
mail  anything  herein  forbidden  to  be  carried  by  mail,  shall  be 
fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  two  years,  or  both ;  and  for  any  subsequent  offense, 
shall  be  imprisoned  not  more  than  five  years.  Any  person  vio- 
lating any  provision  of  this  section  may  be  tried  and  punished 
either  in  the  district  in  which  the  unlawful  matter  or  publication 
mailed,  or  to  which  it  was  carried  by  mail  for  delivery  ac- 
cording to  the  direction  thereon,  or  in  Avhich  it  was  caused  to 
be  delivered  by  mail  to  the  person  to  whom  it  was  addressed." 

It  will  be  noticed  that  every  possible  term  indicating  latitude 
in  the  old  statutes  has  been  incorporated  into  the  new  section, 
and  in  addition  thereto,  authorizes  the  trial  of  any  offender  in 
either  the  district  wherein  the  matter  was  deposited  in  the  mails, 
or  in  the  district  where  the  same  was  taken  from  the  mail's.  The 
statute,  however,  continues  to  contain  the  original  wealaiess  of 
the  old  statutes,  to  wit,  an  indictment  which  charged  merely  the 
depositing  of  a  lottery  ticket,  etc.,  purporting  to  be  or  represent 
a  ticket,  chance,  share,  or  interest  in  or  dependent  upon  the 
event  of  a  lottery,  etc.,  would  not  be  sufficient  to  sustain  a  con- 
viction where  the  proof  only  showed  the  deposit  of  tickets,  etc., 
evidencing  a  drawing  that  had  already  taken  place.  The  tick- 
ets, to  make  an  offense  luider  that  portion  of  the  statute,  must 
be  for  a  future  drawing;  other-v^dse,  it  would  not  be  a  share  or 
interest  in  or  dependent  upon  the  event  of  a  lottery,  etc.  It  is 
quite  true  that  the  indictment  could  include  other  portions  of 
the  statute,  as,  for  instance,  that  the  tickets,  even  though  repre- 


i 


jy 


POSTAL  CRIMES  ]01 

senting  a  past  drawing,  were  advertisements  of  the  lottery,  and, 
therefore,  contraband  and  unlawful.  In  France  et  al  vs.  United 
States,  164  U.' S.,  674;  Book  41  Law  Ed.,  595,  the  Supreme 
Court  of  the  United  States,  speaking  through  IMr.  Justice 
Peckham,  said: 

' '  The  lottery  had  already  been  drawn ;  the  papere  carried  by 
the  messengers  were  not,  then,  dependent  upon  the  event  of  any 
lottery.  The  language  as  used  in  the  statute  looks  to  the  future. 
The  papers  must  purport  to  be  or  represent  an  existing  chance 
or  interest,  which  is  dependent  upon  the  event  of  a  future  draw- 
ing of  the  lottery.  A  paper  that  contains  'nothing  but  figures, 
which  in  fact  relate  to  a  drawing  that  has  already  been  com- 
^pleted,  and  one  that  is  past  and  gone,  cannot  properl.y  be  said 
to  be  a  paper  certificate  or  instrument  as  described  in  the  statute. 
It  purports  to  show  no  interest  in  or  dependent  upon  the  event 
of  any  lottery.  If  the  lottery  has  been  drawn,  the  interest  is  no 
longer  dependent  upon  it.  The  condition  upon  which  the  bet  or 
the  interest  was  dependent  has  happened ;  the  solution  of  the 
problem  has  already  been  arrived  at ;  the  bet  has  already  been 
determined.  The  bare  statement  of  that  solution  or  determina- 
tion, placed  on  paper,  does  not  impart  to  that  paper  the  char- 
acter of  a  certificate  or  instrument  purporting  to  be  or  represent 
a  ticket,  etc.,  dependent  upon  the  event  of  a  lottery.  From  the 
statement  upon  the  paper,  the  agent  may  acquire  the  knowledge 
which  will  enable  him  to  say  who  has  won,  but  the  book  or  the 
paper  does  not  purport  to  be,  and  is  not,  a  certificate,  etc.,  within 
the  Act  of  Congress." 

It  may,  therefore,  be  contended  that  Section  213  is  no  broader 
in  the  way  of  remedying  this  defect  than  was  the  original  law. 
The  Act  of  ^Nlarch  Second,  1895,  still  stands  as  the  only  Act  that 
makes  it  against  the  law  to  transport  by  private  carrier  from  one 
state  to  another.  In  125  Federal,  page  617,  United  States  vs. 
Whelpley,  the  Court  held  that  the  Act  of  1895  did  not  prohibit 
the  transportation  of  lottery  tickets  from  a  state  to  the  munici- 
paliy  of  the  District  of  Columbia,  and  also  that  the  section  did 
not  prohibit  the  transportation  of  lottery  tickets  from  one  state 
''through"  another  state  or  states,  where  the  ultimate  destina- 
tion of  the  shipment  w-as  not  within  one  of  the  United  States. 
See  also  United  States  vs.  Ames,  95  Federal,  453,  which  held 
that  the  transportation  of  lottery  tickets  from  a  state  to  a  terri- 
tory is  not  within  the  statute.     In  this  last  case,  however,  the 


]02  POSTAL  CRIMES 

point  of  great  importance  to  the  life  and  validity  of  the  Act  of 
March  second,  1895,  was,  whether  Congress  had  the  power,  under 
the  Commerce  clause  of  the  Constitution,  to  prohibit  the  trans- 
portation of  lottery  matter  from  one  state  to  another  state  in 
the  United  States,  by  carriers  or  persons  that  were  not  govern- 
ment utilities.  Circuit  Judge  Jenkins  held  the  law  to  apply 
fully.  Thereafter,  in  the  same  case,  styled  Champion  vs.  Ames, 
in  188  U.  S.,  321 ;  47  Law  Ed.,  492.  Mr.  Justice  Harlan,  speak- 
ing for  the  Court,  settled  for  all  time  the  effectiveness  of  the 
new  Act.  The  writer  had  the  honor  to  draw  the  indictment 
passed  upon  in  that  case,  and  each  of  the  defendants  was  after- 
wards convicted  at  the  Dallas  Division  of  the  Northern  Dis- 
trict of  Texas.  In  that  opinion,  Mr.  Justice  Harlan,  after  re- 
viewing extensively  the  authorities,  the  Court  having  ordered  a 
re-argument,  said : — 

"It  was  said  in  argument  that  lottery  tickets  are  not  of  any 
real  or  substantial  value  in  themselves,  and,  therefore,  are  not 
subjects  of  commerce.  If  that  were  conceded  to  be  the  only 
legal  test  as  to  what  are  to  be  deemed  subjects  of  the  commerce 
that  may  be  regulated  by  Congress,  we  cannot  accept  as  accurate 
the  broad  statement  that  such  tickets  are  of  no  value. .  .  .  These 
tickets  were  the  subject  of  traffic ;  they  could  have  been  sold ; 
and  the  holder  was  assured  that  the  company  would  have  paid 
to  them  the  amount  of  the  prize  drawTi.  That  the  holder  might 
not  have  been  able  to  enforce  his  claim  in  the  courts  of  any 
country  making  the  drawing  of  lotteries  illegal,  and  forbidding 
the  circulation  of  lottery  tickets,  did  not  change  the  fact  that 
the  tickets  issued  by  the  foreign  company  represented  so  much 
money  payable  to  the  person  holding  them,  and  who  might  draw 
the  prizes  affixed  to  them.  Even  if  a  holder  did  not  draw  a 
prize,  the  tickets,  before  the  drawing,  had  a  money  value  in  the 
market  among  those  who  chose  to  sell  or  buy  lottery  tickets.  In 
short,  a  lottery  ticket  is  a  subject  of  traffic,  and  is  so  designated 
in  the  Act  of  1895..  .  .We  are  of  the  opinion  that  lottery  tickets 
are  subjects  of  traffic,  and.  therefore,  are  subjects  of  commerce, 
and  the  regulation  of  the  carriage  of  such  tickets  from  state  to 
state,  at  least  by  independent  carriers,  is  a  regulation  of  com- 
merce among  the  several  states." 

§  59.  What  Is  a  Lottery  or  Chance? — In  Horner  vs.  United 
States,  147  U.  S.,  449,  the  Supreme  Court  of  the  United  States 
in  effect  determined  that  whatever  amounted  to  a  distribution 


POSTAL  CRIMP]S 


103 


of  prizes  by  lot  was  a  lottery,  no  matter  how  ingenionsly  the  ob- 
ject of  it  might  be  concealed.  In  United  States  vs.  Wallis,  58 
Federal,  942,  the  Court  held  that  the  language  of  the  statute  is 
sufficiently  comprehensive  to  include  any  scheme  in  the  nature 
of  a  lottery,  and  it  may  be  sufficient  to  say,  said  the  Court,  that 
this  embraces  the  elements  of  procuring  through  lot  or  chance, 
by  the  investment  of  a  sum  of  money  or  something  of  value, 
some  greater  amount  of  money  or  thing  of  greater  value.  AVhen 
such  are  the  chief  features  of  any  scheme,  whatever  it  may  be 
christened,  or  however  it  may  be  guarded  or  concealed  by  cun- 
ningly devised  conditions  or  screens,  it  is.  imder  the  law.  a  lot- 
tery. So,  in  Randall  vs.  State,  42  Texas.  585.  the  Court  deter- 
mined that  Courts  will  not  inquire  into  the  name,  but  will  deter- 
mine the  character  of  the  transaction  or  business  in  which  parties 
are  engaged.  Mr.  Thomas,  in  his  work,  cited  supra,  has  collabor- 
ated a  number  of  definitions,  from  which  the  following  are 
taken : 

"A  lottery  is  a  sort  of  gaming  contract,  by  which,  for  a  val- 
uable consideration,  one  may,  by  favor  of  the  lot,  obtain  a  prize 
of  a  value  superior  to  the  amount  or  value  of  that  which  he 
risks."^Amencan  and  English  Encyclopedia  of  Law. 

' '  Any  scheme  whereby  one,  in  paying  money  or  other  valuable 
thing  to  another,  becomes  entitled  to  receive  from  him  such  re- 
turn in  value,  or  nothing,  as  some  formula  of  chance  may  deter- 
mine." — Bishop  of  Statutory  Crimes,  Section  952. 

"Lottery,  in  its  popular  acceptation,  is  a  distribution  of  prizes 
by  lot  or  chance ;  and  when  the  chances  are  sold  and  the  distri- 
bution of  prizes  determined  by  lot,  this  constitutes  a  lottery." — 
Buck  vs.  State,  62  Ala.,  432;  Solomon  vs.  State,  62  Ala.,  83. 

"The  generally  accepted  definition  of  a  lottery  is,  that  it  is  a 
scheme  for  the  distribution  of  prizes  for  the  obtaining  of  money 
or  goods  by  chance." — People  vs.  Noelke,  94  N.  Y.,  137. 

"Any  device  whereby  money  or  any  other  thing  is  to  be  paid 
or  delivered  on  the  happening  of  any  event  or  contingency  in 
the  nature  of  a  lottery,  is  a.  lotterv  ticket." — Smith  vs.  State.  68 
Md.,  170;  Bayland  vs.  State,  69  Md.,  170. 

"A  lottery  is  a  scheme,  device,  or  game  of  hazard,  whereby, 
for  a  smaller  sum  of  money  or  other  thing  of  value,  the  person 
dealing  therein,  by  chance  or  hazard  or  contingency,  may  or 
may  not  get  money  or  other  thing  of  value,  of  greater  or  less 


104  POSTAL  CRIMES 

value,  or  in  some  cases  of  no  value  at  all,  from  the  owners  or 
managers  of  such  lottery." — State  vs.  Lumsden,  89  N.  C,  572. 

"Whatever  may  be  the  name  or  character  of  the  machine  or 
scheme,  if  in  its  use  a  consideration  is  paid,  and  there  is  gam- 
bling, the  hazarding  of  small  amounts  to  win  larger,  the  result 
of  winning  or  losing  to  be  determined  by  chance,  in  which  neither 
the  will  nor  skill  of  man  co-operates  to  influence  the  result,  it  is 
a  determination  by  lot." — Loiseau  vs.  State,  22  Southern  Rep., 
138. 

"Both  by  reason  and  authority,  a  lottery  is  a  game — a  game 
of  chance."— Korten  vs.  Seney,  68  N.  W.,  824. 

It  must  also  be  constantly  borne  in  mind  that  a  scheme  may 
come  within  the  meaning  of  the  lot  or  chance  or  lottery  clause 
of  the  above  acts,  even  though  every  investor  secures  something ; 
that  is  to  say,  even  though  there  be  no  blanks.  United  States 
vs.  Horner,  cited  supra.  So  in  Seidenbender  vs.  Charles,  4  Serg. 
and  Rawle,  151,  (8  Am.  Dec,  682),  and  Dunn  vs.  State,  40 
Illinois,  465. 

This  class  of  cases  covers  and  inhibits  the  so-called  land 
scheme,  where  each  adventurer  secures  a  lot  of  land,  but  the  lots 
ure  of  unequal  value,  yet  each  being  secured  for  the  same  price. 
The  Supreme  Court  of  Pennsylvania  said  upon  this  point  :-- 

"  If  it  be  said  that  in  this  case  there  are  no  blanks,  we  answer 
that  no  material  difference  arises  from  that  circuinstancc.  Some 
of  the  most  fraudulent  lotteries  ever  known  ha\e  been  tliose  in 
which  there  were  no  blanks.  They  are  an  imposition  on  the 
folly  of  mankind;  for  of  what  importance  is  it  i):  a  man  who 
pays  a  considerable  sum  for  a  ticket  has  a  prize  of  very  little 
value. ' ' 

So  in  the  Dunn  case,  cited  supra,  the  Supreme  Court  (f  Illi- 
nois said,  the  case  showing  that  prizes  in  that  scheme  rimged  in 
value  from  a  cheap  trinket  to  a  grand  piano : — 

"If  it  differs  from  ordinary  lotteries,  the  difference  is  chiefly 
in  the  fact  that  it  is  more  artfully  contrived  to  impose  upon  the 
ignorant  and  credulous,  and  is,  therefore,  more  thoroughly  dis- 
honest and  injurious  to  society." 

§  60.  Land  Schemes. — One  of  the  most  universal  violations  and 
attempts  to  violate  the  lottery  statute  are  the  various  and  sun- 
dry schemes  for  the  sale  and  distribution  of  town-lot  additions. 
A  tract  of  land  will  be  secured  contigious  to  some  city  or  town, 


POSTAL  CRIMES  105 

the  same  will  be  plotted  into  lots,  and  upon  one  or  two  of  such 
lots  a  building  will  be  erected,  and  then  the  entire  addition  put 
on  the  market  at  a  uniform  price  per  lot,  there  being  some  sort 
of  an  arrangement  whereby  the  investors  are  to  determine  which 
one  shall  secure  the  important  lot.  This  identical  scheme  has 
been  denounced  by  the  Supreme  Court  of  Pennsylvania  in  the 
Seidenbender  vs.  Charles  case,  cited  supra.  In  that  case  the 
evidence  showed  that  a  party  possessed  of  a  tract  of  land  on  the 
banks  of  a  river  divided  into  to"\Mi  lots,  which  he  sold  for  three 
hundred  thirty  dollars  each,  the  specific  lot  to  be  awarded  to 
each  purchaser  by  lot.  The  lots  were  of  unequal  value.  The 
one  on  which  the  house  was  erected  was  valued  at  eleven  thou- 
sand dollars ;  another  having  a  barn  on  it  was  valued  at  three 
thousand  dollars,  and  two  of  the  others  had  wooden  buildings 
thereon.  "While  the  lots  abutting  on  the  river  were  peculiarly 
valuable,  the  great  mass  which  laid  back  from  the  river,  and 
which  were  unimproved,  bore  no  proportion  to  the  price  at  which 
the  tracts  were  sold. 

This  scheme  was  denominated  a  lottery. 

Throughout  the  country  this  and  similar  decisions  are  being 
avoided  by  having  the  purchasers  determine  among  themselves 
how  the  lots  shall  be  divided,  in  which  division  there  will  be  no 
drawing;  as,  for  instance,  a  commimity  of  trustees  will  be  ap- 
pointed, and  these  trustees  will  pretend  to  auction  the  lots. 
It  is  thought,  however,  that  all  such  schemes  are  really  within 
the  pale  of  the  law,  because  the  real  incentive  moving  toward 
the  purchaser  in  all  these  cases  is  the  thought  that  he  may  se- 
cure the  valuable  lot. 

§  61.  Issuing  of  Stock. — The  Post-office  Department  and  its 
force  of  inspectors,  and  particularly  the  Assistant  Attorney 
General  for  that  Department,  has  been  most  efficient  in  render- 
ing service  to  the  general  public  by  declaring  fraudulent  a  great 
many  so-called  stock  concerns,  insurance  companies,  building  and 
loan  associations,  tontine  policy  corporations,  that  pretend  to 
issue  stock  or  certificates,  or  to  loan  money  at  some  future  date 
to  sucli  customers  as  would  pay  in  small  installments  at  short 
and  stated  periods.  By  applying  figures  and  reasons  to  the  re- 
spective plans  of  these  fraudulent  concerns,  these  officers  of  the 


10(]  POSTAL   CRIMES 

people  determined  that  it  was  impossible  for  the  concerns  to 
carry  out  the  contracts  made,  and  when  such  conclusion  has  been 
reached,  a  fraud  order  has  followed  under  the  statute  cited  supra, 
and  ofttimes  the  perpetrators  have  been  convicted.  Such  a 
scheme  was  denounced  and  a  conviction  followed  in  the  case 
cited  at  page  477  of  the  156  Federal  Reporter,  Fitzsimmons  vs. 
United  States.  That  was  a  scheme  by  which  certificates  were 
issued  by  a  corporation  on  each  of  which  the  holder  agreed  to 
pay  one  dollar  per  week,  subject  to  forfeiture  for  non-payment, 
and  about  seventy-five  per  cent,  of  which  payments  were  paid 
into  a  ''mutual  benefit  credit  fund"  until  all  certificates  prior 
in  date  had  matured  and  been  cancelled,  when  his  own  certificate 
should  mature,  and  he  should  be  paid  from  such  fund  a  sum  of 
two  dollars  for  each  week  such  certificate  had  been  in  force,  pro- 
vided there  were  in  such  fund  the  amount,  which  was  not  to 
exceed  the  sum  of  one  hundred  sixty  dollars. 

§  62.  Other  Cases.^ — Other  cases  bearing  directly  and  indirectly 
upon  the  statute  under  discussion,  by  reason  of  their  having 
arisen  under  some  of  the  preceding  statutes,  are  the  following : 

United  States  vs.  Irvine,  56  Fed.,  375. 

United  States  vs.  Rosenblum,  121  Fed.,  180. 

United  States  vs.  Fulkerson,  74  Fed.,  619. 

United  States  vs.  McDonald,  65  Fed.,  486. 

McDonald  vs.  United  States.  63  Fed.,  426. 

United  States  vs.  Conrad,  59  Fed.,  458. 

United  States  vs.  Politzer,  59  Fed.,  273.  ' 

United  States  vs.  Lynch,  49  Fed.,  851. 

United  States  vs.  Bailey,  47  Fed.,  117. 

United  States  vs.  Horner.  44  Fed..  677. 

Ex  parte  Jackson,  96  U.  S.,  727. 

In  re  Rapier,  143  U.  S.,  110. 

Homer  vs.  United  States,  143  U.  S.,  570,  and  147  U.  S.,  449. 

McDonald  vs.  U.  S.,  171  U.  S.,  689 ;  also  87  Fed.,  324. 

U.  S.  vs.  McCrory.  175  Fed..  802.  holds  incidental  use  of 
mails  insufficient. 

§  63.  Postmasters  Not  to  Be  Lottery  Agents.  —  Section  214 
makes  it  an  offense  piuiishable  by  not  more  than  one  hundred 
dollars  fine,  or  imprisonment  for  not  more  than  one  year,  or  both. 


POSTAL  CRIMES  IO7 

for  any  postmaster  or  other  person  employed  in  the  postal 
service,  to  act  as  an  agent  for  any  lottery,  or  imder  color  of 
purchase  or  otherwise  to  vend  lottery  tickets,  or  to  knowingly 
send  the  same  by  mail,  or  to  deliver  any  letter  or  package  or 
postal  card  or  circular  or  pamphlet  advertising  any  lottery,  etc., 
which  is  a  substantial  re-enactment  of  the  old  Section  3851  of 
the  Revised  Statutes,  the  new  section  being  somewhat  broader 
and  covering  more  territory.  In  Louisiana  lottery  cases,  20 
Federal,  628,  the  Court  held  that  the  word  "send"  as  used  in 
the  old  section,  signifies  forwarding  in  the  mail  through  the 
officers  of  the  government. 

§  64.  False  Returns  to  Increase  Compensation. — Section  3855 
of  the  old  statutes  provided  the  basis  for  iixing  the  compensa- 
tion and  salary  of  postmasters  of  the  fourth  class.  That  stat- 
ute was  subsequently  amended  in  some  detail  by  the  Act  shown 
at  page  186  of  the  First  Volume  of  the  Supplement,  and  later 
by  the  Act  shown  at  page  417  of  the  First  Volume  of  the  Sup- 
plement, and  still  later  by  the  Act  shown  at  page  419  of  the 
First  Volume  of  the  Supplement,  and  still  later  by  Section  2  of 
the  Act  shown  at  page  602  of  the  22  Statute  at  Large. 

The  pay  of  officers  of  this  class  is  graded  in  this  last  act  upon 
the  amount  of  stamps  canceled.  For  instance,  on  the  first 
fifty  dollars  or  less  per  quarter,  one  himdred  per  cent. ;  on  the 
next  one  hundred  dollars  or  less  per  quarter,  sixty  per  cent. ;  on 
the  next  two  hundred  dollars  or  less  per  quarter,  fifty  per  cent ; 
and  on  all  the  balance  forty  per  cent.,  the  same  to  be  ascertained 
and  allowed  by  the  Auditor  of  the  Treasury  for  the  Post-office 
Department  in  the  settlement  of  the  accounts  of  such  post- 
masters, upon  their  sworn  quarterly  returns.  To  guarantee 
fidelity  in  these  returns  and  these  reports.  Congress  enacted 
Section  1  of  the  20  St.  L.,  page  141,  which  provided  a  punish- 
ment for  any  false  return  made  by  a  postmaster  to  the  Auditor 
for  the  purpose  of  fraudulently  increasing  his  compensation. 
This  includes  what  has  been  technically  termed  "false  cancella- 
tion;" and  while  it  is  one  of  the  most  difficult  offenses  to  prove 
in  the  postal  service,  such  proof  has  repeatedly  been  made  by 
the  placing  of  proper  watches  and  counts  upon  the  outgoing 


]08  POSTAL  CRIMES 

mail  matter  from  the  office,  and  by  the  estimating  of  the  sale  of 
stamps,  computing  of  box  rents,  drop  letters,  etc. 

Section  206  of  the  new  statute  increases  the  penalty  and  is 
much  more  comprehensive  than  the  old  statute,  and  reads  as 
follows : 

""Whoever,  being  a  postmaster  or  other  person  employed  in 
any  branch  of  the  postal  service,  shall  make,  or  assist  in  making, 
or  cause  to  be  made  a  false  return,  statement,  or  account  to  any 
officer  of  the  United  States,  or  shall  make,  assist  in  making,  or 
cause  to  be  made,  a  false  entry  in  any  record,  book,  or  account, 
required  by  law  or  the  rules  or  regulations  of  the  Post-office 
Department  to  be  kept  in  respect  of  the  business  or  operations 
of  any  post-office  or  other  branch  of  the  postal  service,  for  the 
purpose  of  fraudulently  increasing  his  compensation  or  the  com- 
pensation of  the  postmaster  or  any  employee  in  a  post-office;  or 
whoever,  being  a  postmaster  or  other  person  employed  in  any 
post-office  or  station  thereof,  shall  induce,  or  attempt  to  induce, 
for  the  purpose  of  increasing  the  emoluments  or  compensation 
of  his  office,  any  person  to  deposit  mail  matter  in,  or  forward  in 
any  manner  for  mailing  at,  the  office  where  such  postmaster  or 
other  person  is  employed,  knowing  such  matter  to  be  properly 
mailable  at  another  post-office,  shall  be  fined  not  more  than  five 
hundred  dollars,  or  imprisoned  not  more  than  two  years,  or 
both." 

Few  cases  imder  this  criminal  statute  have  been  reported. 
United  States  vs.  Snyder,  page  554  in  the  14  Federal,  and  the 
same  case  in  the  8  Federal,  at  page  805,  do  not  contain  any  sug- 
gestions that  will  be  of  much  benefit  to  the  practitioner.  This 
case  simply  determines  that  one  may  aid  and  abet  a  postmaster 
in  committing  the  offense,  and  that  evidence  of  other  acts  and 
doings  of  a  kindred  character  are  admissible  to  illustrate  or  es- 
tablish the  intent  or  motive  in  the  particular  act  charged  and 
being  tried,  which  is,  of  course,  the  recognized  doctrine  in  all 
criminal  cases. 

In  United  States  vs.  Wilson,  144  U.  S.,  24,  affirmed  in  the  26 
Court  of  Claims,  186,  and  27  Court  of  Claims,  565,  it  was  held 
that  a  postmaster  was  entitled  to  his  salary  under  a  designation 
by  the  Postmaster  General,  even  though  he  was  not  commis- 
sioned by  the  President  until  some  months  thereafter. 

§  65.  Civil  Remedy. — The  following  cases  relate  to  that  portion 


POSTAL  CEIMES  -[09 

of  the  old  statute,  20  St.  L..  141.  which  relates  to  the  civil  feature 
in  which  the  government  is  interested  in  the  way  of  fixing  the 
compensation,  withholding  the  same,  and  recovering  the  same. 
A  Postmaster  General  having  allowed  the  commissions,  he  can- 
not recover  the  same  without  due  process  of  law.  United  States 
vs.  Case,  49  Fed.,  270;  United  States  vs.  Ilutcheson,  39  Fed., 
540 ;  United  States  vs.  Miller,  8  Utah,  29. 

The  Postmaster  General  may  determine,  under  the  arbitrary 
power  given  him,  what  is  right  and  reasonable  in  the  matter  of 
compensation,  when  the  false  return  has  been  made.  United 
States  vs.  Joedicke.  73  Fed.,  100.  A  certified  copy  of  an  order 
of  the  Postmaster  General  to  recover  money  against  a  postmas- 
ter for  false  returns,  is  prima  facie  evidence  of  the  fact  of  such 
falseness.  United  States  vs.  Dumas,  149  U.  S..  283;  Joedicke  vs. 
U.  S.,  85  Fed..  372;  U.  S.  vs.  Carlovitz,  80  Fed.,  852;  U.  S.  vs. 
Case,  49  Fed.,  270;  U.  S.  vs.  McCoy,  193  U.  S.,  599. 

§  Q&.  Collection  of  Unlawful  Postage. — Closely  akin  to  the  fore- 
going section,  and  for  the  protection  of  the  public,  both  in  the 
way  of  extortion  and  to  insure  uniform  service,  is  Section  207 
of  the  new  Code,  which  reads  as  follows: 

"Whoever,  being  a  postmaster  or  other  person  authorized  to 
receive  the  postage  of  mail  matter,  shall  fraudulently  demand  or 
receive  any  rate  of  postage  or  gratuity  or  reward  other  than  is 
provided  by  law  for  the  postage  of  such  mail  matter,  shall  be 
fined  not  more  than  one  hundred  dollars,  or  imprisoned  not  more 
than  six  months,  or  both." 

It  is  a  practical  re-enactment  of  the  old  Section  3899,  with  the 
exception  that  the  new  section  increases  the  punishment  by  add- 
ing the  imprisonment  feature.  It  is  also  more  wholesale  in  its 
terms,  since  it  uses  the  word  "mail  matter"  while  the  old  sec- 
tion used  the  word  "letters." 

§  67.  Unlawful  Pledging  or  Sale  of  Stamps. — To  further  guar- 
antee uniformity  in  the  service  and  one  price  to  all,  and  to  con- 
serve the  government  property  and  prevent  its  use  by  its  official, 
and  to  restrict  the  salary  of  the  Postmaster  or  other  person  em- 
ployed in  the  post-office  within  the  limits  of  that  fixed  by  law. 
Congress  passed  old  Section  3920  of  the  Revised  Statutes,  and 
later  an  addition  at  page  141  of  the  20  St.  L.,  both  of  which 


1]0  POSTAL  CRIMES 

acts  are  now  included  in  the  new  section  208,  in  the  following 
words : 

"Whoever,  being  a  postmaster  or  other  person  employed  in 
any  branch  of  the  postal  service,  and  being  intrusted  with  the 
sale  or  custody  of  postage  stamps,  stamped  envelopes  or  postal 
cards,  shall  use  or  dispose  of  them  in  the  payment  of  debts,  or  in 
the  purchase  of  merchandise  or  other  salable  articles,  or  pledge  or 
hypothecate  the  same,  or  sell  or  dispose  of  them  except  for  cash ;  or 
sell  or  dispose  of  postage  stamps  or  postal  cards  for  anv  larger  or 
less  sum  than  the  values  indicated  on  their  faces ;  or  sell  or  dispose 
of  stamped  envelopes  for  a  larger  or  less  sum  than  is  charged 
therefor  by  the  Post-office  Department  for  like  quantities ;  or  sell 
or  dispose  of,  or  cause  to  be  sold  or  disposed  of,  postal  stamps, 
stamped  envelopes,  or  postal  cards  at  any  point  or  place  outside 
of  the  delivery  of  the  office  where  such  postmaster  or  other  per- 
son is  employed ;  or  induce  or  attempt  to  induce,  for  the  pur- 
pose of  increasing  the  emoluments  or  compensation  of  such  post- 
master, or  the  emoluments  or  compensation  of  any  other  person 
employed  in  such  post-office  or  any  station  thereof,  or  the  allow- 
ances or  facilities  provided  therefor,  any  person  to  purchase  at 
such  post-office  or  any  station  thereof,  or  from  any  employee  of 
such  post-office,  postage  stamps,  stamped  envelopes,  or  postal 
cards ;  or  sell  or  dispose  of  postage  stamps,  stamped  envelopes, 
or  postal  cards,  otherwise  than  as  provided  by  law  or  the  regu- 
lations of  the  Post-office  Department,  shall  be  fined  not  more 
than  five  hundred  dollars,  or  imprisoned  not  more  than  one  year, 
or  both." 

Under  the  provisions  of  this  section,  the  indictment  must 
allege,  and  the  facts  must  show,  that  the  stamps  used  by  the 
postmaster  had  been  received  by  him  officially  from  the  govern- 
ment, because  the  use  of  stamps  by  a  postmaster  procured  from 
another  source,  is  not  prohibited  by  the  statute,  as  the  word  "in- 
trusted" is  used  W'ith  reference  to  the  sort  of  stamps  protected 
by  the  Act.  United  States  vs.  Williamson,  26  Federal,  690.  The 
new  section  is  as  strong  in  its  inhibition  against  the  use  of  stamps 
by  a  postmaster  in  the  payment  of  merchandise,  even  though  he 
place  the  money  value  of  the  stamps  in  the  till  of  the  post-office. 
In  United  States  vs.  Douglas.  33  Fed.,  381.  the  Court  in  charg- 
ing the  jury,  said: — 

"The  defendant,  testifying  on  his  own  behalf,  admitted  that 
he  had  used  stamps  on  several  occasions  in  payinsr  for  merchan- 
dise and  remitting  money  for  the  purpose  of  making  change. 


POSTAL  CRIMES  HI 

He  says  that  he  did  this  not  dreaming  that  it  was  wrong,  and 
that  in  every  instance  he  put  the  money  vahie  of  the  stamps  so 
used  in  the  till  of  the  post-office ;  in  fact,  thus  purchasing  the 
stamps  from  himself.  The  Act  of  Congress  forbids  any  disposi- 
tion by  a  postmaster  of  stamps  intrusted  to  him,  except  the  sale 
of  them  at  their  face  value  for  cash  to  third  persons.  He  cannot 
use  them  in  purchase  of  goods,  or  in  payment  of  debts  nor  can 
he  purchase  them  from  himself  for  any  such  purpose.  By  his 
own  admission,  therefore,  he  has  violated  the  law,  and  if  you  be- 
lieve him,  you  must  find  him  guilty  on  the  indictment." 

In  Palliser  vs.  United  States,  136  U.  S.,  267 ;  84  Law  Ed.,  514, 
the  Supreme  Court  of  the  United  States,  speaking  through  J\Ir. 
Justice  Gray,  held  that  the  word  "cash"  in  the  Act  forbidding 
a  postmaster  to  sell  or  dispose  of  postage  stamps  except  for  cash, 
means  ready  money  or  money  in  hand.  A  sale  on  credit  is  not  a 
sale  for  cash.  That  case  further  determines  that  an  offer  to  a 
postmaster,  promising  him  that  if  he  would  put  postage  stamps 
on  certain  circualrs  and  send  them  at  the  rate  of  fifty  to  one- 
himdred,  that  the  writer  would  remit  to  him  the  price  of  the 
stamps,  that  such  an  offer  was  the  tender  of  a  contract  for  the 
payment  of  money  to  induce  the  postmaster  to  sell  stamps  on 
credit,  in  violation  of  his  lawful  duty,  and  that  an  offer  of  a 
contract  to  pay  money  to  a  postmaster  for  an  unlawful  sale  by 
him  of  postage  stamps  on  credit  is  not  the  less  within  the  statute, 
(the  Court  was  then  considering  Section  5451  of  the  old  Re- 
vised Statutes),  because  his  commission  on  the  sale  would  be  no 
greater  than  upon  a  lawful  sale  for  cash.  In  United  States  vs. 
Walter  Scott  Stamp  Company,  87  Federal,  721,  Circuit  Judge 
Lacombe,  in  passing  upon  a  civil  action  of  replevin  brought  by 
the  government  against  a  concern  that  had  in  its  possession  a 
great  number  of  stamps,  decided  that  the  possession  of  stamps 
by  persons  outside  of  and  imconnected  with  the  Post-office  De- 
partment is  not  presumptively  unlawful. 

§  68.  Failure  to  Account  for  Postage  and  to  Cancel  Stamps.— 
Section  209  of  the  new  Code,  reading  as  follows : 

"Whoever,  being  a  postmaster  or  other  person  engaged  in  the 
postal  service,  shall  collect  and  fail  to  account  for  the  postage 
due  upon  any  article  of  mail  matter  which  he  may  deliver,  with- 
out having  previously  affixed  and  canceled  the  special  stamp 


112  POSTAL  CHIMES 

provided  by  law,  or  shall  fail  to  affix  such  stamp,  shall  be  fined 
not  more  than  fifty  dollars," 

relates  evidently  only  to  what  is  commonly  known  as  special  or 
due  postage.  It  was  originally  a  part  of  the  Act  of  March  3, 
1879,  as  shown  at  page  249  of  the  First  Volume  of  the  Supple- 
ment, and  was  Section  27  of  that  Act. 

§  69.  Issuing  Money  Order  Without  Payment. — Section  210  of 
of  the  new  Code  reads  as  follows: 

"Whoever,  being  a  postmaster  or  other  person  employed  in 
any  branch  of  the  postal  service,  shall  isue  a  money  order  with- 
out having  previously  received  the  money  therefor,  shall  be  fined 
not  more  than  five  hundred  dollars." 

The  only  difference  between  it  and  4030  of  the  Revised  Stat- 
utes, which  was  directed  at  the  same  offense,  is  that  the  new 
Code  contains  no  minimum  fine,  and  does  not  denounce  the  of- 
fense as  a  misdemeanor.  In  view  of  the  lightness  of  the  punish- 
ment and  the  dire  consequences  of  issuing  money  orders  without 
having  received  the  money  therefor,  it  is  believed  that  Section 
210  was  intended  merely  for  the  punishment  of  postal  employees 
who  through  negligence,  and  not  by  reason  of  any  fraudulent 
design,  issue  a  money  order  without  previously  having  received 
the  money  therefor.  Practically  the  entire  money-order  funds 
of  the  government  are  at  the  disposal  of  each  employee  who  has 
authority  to  issue  money-orders,  and  a  punishment  so  light  as 
that  affixed  under  this  section  would  be  entirely  disproportion- 
ate to  the  grievousness  of  the  offense,  and  all  fraudulent  issues, 
therefore,  of  money  orders,  by  postal  employees,  should  or  may 
be  prosecuted  under  Section  218  of  the  new  Code,  as  they  were 
under  5463  of  the  old  statutes  and  amendments  thereto. 

§  70.  Counterfeiting  Money  Orders,  Etc.,  and  Fraudulently  Is- 
suing the  Same  Without  Having  Received  the  Money  Therefor. — 
Section  218  of  the  new  Code  embraces  all  the  features  of  5463  of 
the  old  statute,  the  Act  of  the  third  of  January,  1887,  First 
Supplement,  518,  and  the  Act  of  the  eighteenth  of  June,  1888, 
First  Supplement,  593,  and  reads  as  follows: 

"Whoever,  with  intent  to  defraud,  shall  falsely  make,  forge, 
counterfeit,  engrave,  or  print,  or  cause  or  procure  to  be  falsely 
made,  forged,  counterfeited,  engraved  or  printed,  or  shall  vnll- 
ingly  aid  or  assist  in  falsely  making,  forging,  counterfeiting, 


POSTAL  CRIMES  113 

engraving,  or  printing,  any  order  in  imitation  of  or  purporting 
to  be  a  money  order  issued  by  the  Post-office  Department,  or  by 
any  postmaster  or  agent  thereof ;  or  whoever  shall  forge  or  coun- 
terfeit the  signature  of  any  postmaster,  assistant  postmaster, 
chief  clerk,  or  clerk,  upon  or  to  any  money  order,  or  postal  note, 
or  blank  therefor  provided  or  issued  by  or  under  the  direction 
of  the  Post-office  Department  of  the  United  States,  or  of  any 
foreign  country,  and  payable  in  the  United  States,  or  any  ma- 
terial signature  or  endorsement  thereon,  or  any  material  signa- 
ture to  any  receipt  or  certificate  of  identification  thereon ;  or 
shall  falsely  alter  or  cause  or  procure  to  be  falsely  altered  in  any 
material  respect,  or  knowingly  aid  or  assist  in  falsely  so  altering 
any  such  money  order  or  postal  note;  or  shall,  with  intent  to 
defraud,  pass,  utter,  or  publish  any  such  forged  or  altered 
money  order  or  postal  note,  knowing  any  material  signature  or 
endorsement  thereon  to  be  false,  forged,  or  counterfeited,  or  any 
material  alteration  therein  to  have  been  falsely  made;  or  shall 
issue  any  money  order  or  postal  note  without  having  previously 
received  or  paid  the  full  amount  of  money  payable  therefor, 
with  the  purpose  of  fraudulently  obtaining  or  receiving,  or 
fraudulently  enabling  any  other  person,  either  directly  or  in- 
directly to  obtain  or  receive  from  the  United  States  or  any  officer 
employed,  or  agent  thereof,  any  sum  of  money  whatever ;  or  shall 
with  intent  to  defraud  the  United  States  or  any  person, 
transmit  or  present  to,  or  cause  or  procure  to  be  transmit- 
ted or  presented  to,  any  officer  or  employee  or  at  any  office 
of  the  government  of  the  United  States,  any  money  order  or 
postal  note,  knowing  the  same  to  contain  any  forged  or  coimter- 
feited  signature  to  the  same,  or  to  any  material  endorsement,  re- 
ceipt, or  certificate  thereon,  or  material  alteration  therein  unlaw- 
fully made,  or  to  have  been  unlawfully  issued  without  previous 
payment  of  the  amount  required  to  be  paid  upon  such  issue, 
shall  be  fined  not  more  than  five  thousand  dollars,  or  imprisoned 
not  more  than  five  years,  or  both," 

An  indictment  under  the  forging  or  counterfeiting  feature  of 
this  section  must  contain  no  incompatibility  of  purport  and 
tenor  clauses,  and  it  is  decidedly  the  safer  plan  for  the  bill  to 
set  out  in  hec  verba  the  instrument,  and  the  pleader  must  take 
careful  notice  that  the  instrument  so  set  out  does  not  differ  in 
any  respect  from  that  portion  of  the  bill  giving  the  purport  of 
the  forged  instrument. 

The  old  Common  Law  rule  that  a  fictitious  name  could  not  be 
subject  to  forgery,  for  the  reason  that  there  would  be  no  one  to 


114  POSTAL  CRIMES 

be  defrauded,  has  a  marked  exception  under  this  statute.  In 
ex  parte  Hibbs,  26  Federal,  421,  which  was  a  case  that  arose  by 
reason  of  a  postmaster  issuing  a  money-order  on  the  application 
of  a  fictitious  person  payable  to  a  certain  bank,  to  which  he  at 
the  same  time  wrote  in  the  name  of  such  person,  directing  that 
the  amount  of  the  order  be  collected  and  remitted  to  him  in  a 
registered  package,  which  he  intercepted  as  it  passed  through 
his  office,  converting  the  contents  to  his  own  use,  the  Court  held 
that  the  Act  of  the  postmaster  constituted  forgery,  both  at  Com- 
mon Law  and  under  the  statute,  to  wit,  5463. 

In  United  States  vs.  Royer,  122  Federal,  844,  the  government 
elected  to  prosecute  a  clerk  in  a  post-office  authorized  to  issue 
money  orders,  who  had  issued  money  orders  in  payment  of  his 
private  debts,  under  Section  4046  of  the  Revised  Statutes,  for  an 
embezzlement  of  money  order  funds.  Clearly,  he  was  also  guilty 
of  a  violation  of  Section  5463,  after  having  issued  the  orders 
without  first  having  received  the  money  therefor,  but  the  decis- 
ion of  the  Court  in  that  case  shows  to  what  extent  an  employee 
empowered  to  issue  money  orders  may  depredate  upon  the  Gov- 
ernment funds.  In  Vives  vs.  United  States,  92  Federal,  355, 
Judge  Pardee,  speaking  for  the  Circuit  Court  of  Appeals  for  the 
Fifth  Circuit,  with  reference  to  the  defendant's  use  of  money 
order  funds  by  drawing  money  orders  without  previously  re- 
ceiving the  money  therefor,  and  which  was  a  prosecution  for 
embezzlement  under  4046,  said  that  the  intention  of  the  em- 
ployee to  return  the  money  to  the  Government  when  a  settle- 
ment of  his  account  would  have  been  due  was  no  defense  under 
the  law.  In  United  States  vs.  Long,  30  Federal,  678,  Judge 
Speer,  in  charging  the  jury,  said  that  forgery,  being  the  fraud- 
ulent making  or  alteration  of  a  writing  to  the  prejudice  of  an- 
other man's  right,  and  that  one  may  be  guilty  of  such  forgery  if 
he  fraudulently  signs  his  own  name,  although  it  is  identical  with 
the  name  of  the  person  who  should  have  signed.  He  further 
holds  in  the  same  ease  that  the  signature  to  a  receipt  on  a  money 
order  is  a  material  signature  in  the  meaning  of  the  law. 

It  may  be  here  remarked  that  that  portion  of  the  statute  which 
relates  to  the  forgery  of  a  material  endorsement  or  signature  to 


POSTAL  CRIMES  115 

a  money  order  or  any  receipt  thereon,  is  the  portion  of  the  law 
most  frequently  violated. 

It  must  be  continually  borne  in  mind  that  the  indictment  must 
charge,  and  the  proof  must  show  that  the  forgery  or  other  acts 
committed  under  this  section  were  so  committed  with  the  inten- 
tion to  defraud.  In  United  States  vs.  ]\Iorris,  16  Blatchf.  (Uni- 
ted States),  133,  26  Federal  Cases  No.  15813,  the  Court  hekl 
that  even  though  an  indictment  charged  the  defendant  with 
having  forged  a  material  endorsement  upon  a  post-office  money- 
order  with  the  intent  to  defraud  a  certain  private  person,  the 
same  was  sufficient,  because  it  was  still  an  act  which  the  United 
States  had  the  authority  to  punish,  for  tiie  better  protection  of 
money  orders  lawfully  issued  by  the  United  States. 

Judge  Thayer,  in  United  States  vs.  Crecilius,  34  Federal,  page 
32,  said  that  the  word  "alter",  as  used  in  this  statute,  described 
an  act  or  acts  not  distinctly  covered  or  embraced  by  any  preced- 
ing word. 

Under  the  statute  as  it  is  now  drawn,  there  is  practically  no 
act,  alteration,  erasure,  or  change  that  can  be  made  to  a  money 
order  with  fraudulent  intent  that  is  not  by  some  of  the  terms  of 
the  statute  fitted  with  the  meaning  of  the  same. 

§  71.  Counterfeiting  Postage  Stamps,  Domestic  or  Foreign.— 
Sections  5464  and  5465  of  the  old  statutes  protected  from  forging 
and  counterfeiting  the  stamps  and  envelopes  and  other  output 
of  the  Post-office  Department  which  were  for  the  purpose  of 
paying  postage,  whether  of  this  or  a  foreign  country.  These  two 
statutes,  with  some  change  in  punishment,  have  become  Sections 
219  and  220  of  the  new  Code,  and  they  read  as  follows : 

"Sec.  219.  Whoever  shall  forge  or  counterfeit  any  postage 
stamp  or  any  stamp  printed  upon  any  stamped  envelone  or  pos- 
tal card,  or  "any  die,  plate,  or  engraving  therefor;  or  shall  make 
or  print,  or  knowingly  use  or  sell,  or  have  in  possession  with  in- 
tent to  use  or  sell,  any  such  forged  or  counterfeited  postage 
stamp,  stamped  envelope,  postal  card,  die,  plate,  or  engraving; 
or  shall  make  or  knowingly  use  or  sell,  or  have  in  possession  with 
intent  to  use  or  sell,  any  paper  bearing  the  water-mark  of  any 
stamped  envelope,  or  postal  card,  or  any  fraudulent  imitation 
thereof;  or  shall  make,  or  print,  or  authorize  or  procure  to  be 
made  or  printed,  any  postage  stamp,  stamped  envelope,  or  postal 
card  of  the  kind  authorized  and  provided  by  the  Post-office  De- 


116  POSTAL  CRIMES 

partment,  without  the  special  authority  and  direction  of  said 
Department;  or  shall,  after  such  postage  stamp,  stamped  envel- 
ope, or  postal  card  has  been  printed,  with  intent  to  defraud,  de- 
liver the  same  to  any  person  not  authorized  by  an  instrument 
in  writing,  duly  executed  under  the  hand  of  the  Postmaster 
General  and  the  seal  of  the  Post-office  Department,  to  receive  it, 
shall  be  fined  not  more  than  five  lumdred  dollars,  or  imprisoned 
not  more  than  five  years,  or  both." 

"Sec.  220.  Whoever  shall  forge,  counterfeit,  or  knowingly 
utter  or  use  any  forged  or  counterfeited  postage  stamp  of  any 
foreign  government,  shall  be  fined  not  more  than  five  hundred 
dollars,  or  imprisoned  not  more  than  five  years,  or  both. ' ' 

It  will  be  observed  that  each  of  the  sections  fails  to  include 
any  word  with  reference  to  intent,  and  in  the  absence  of  any 
such  word,  and  under  the  authority  of  United  States  vs.  Copper- 
smith, 4  Federal,  198,  and  United  States  vs.  Field,  16  Federal. 
779,  it  would  seem  that  an  indictment  does  not  have  to  charge 
fraudulent  intent  in  alleging  the  ingredients  of  a  counterfeiting 
or  forging  charge.  It  is  quite  apparent  that  the  observations  in 
the  two  cases  just  cited  that  these  offenses  are  not  felonies,  by 
reason  of  the  repeal  of  the  old  statute,  when  the  Act  of  June  8, 
1872,  became  effective,  is  forceless  under  the  new  sections,  be- 
cause the  new  Code  itself  denominates  all  offenses  felonies  where 
the  punishment  may  be  confinement  for  a  year. 

Notwithstanding  the  severity  of  the  punishment  and  the  mean- 
ing usually  given  to  the  words  "counterfeit"  or  "forge"  in 
criminal  statutes,  which  invariably  implies  venality  and  corrup- 
tion, the  language  of  these  sections  would  seem  to  indicate  that 
it  was  the  intention  of  Congress  to  so  denounce  in  definition, 
and  by  severe  punishment,  and  to  prevent,  if  possible,  even  ex- 
perimenting in  the  reproduction  of  facsimiles  of  postage  stamps, 
envelopes,  cards,  etc.,  like  those  made  by  the  Government,  be- 
cause it  may  be  argued  that  no  one  would  trouble  himself  to  fac- 
simile such  a  small  article,  unless  he  intended  to  work  injury. 
On  the  other  hand,  this  may  be  one  of  those  statutes  in  which 
Congress  has  neglected  to  include  all  of  the  elements  of  the  of- 
fense, and  it  thereupon  devolves  upon  the  pleader  to  draw  his 
bill  sufficiently  broad  to  define  the  offense,  even  though  the 
statute  do  not  do  so. 


POSTAL  CRIMES  117 

§  72.  Misappropriation  of  Postal  Funds  or  Property  by  Use  or 
Failure  to  Deposit. — Section  225  of  the  new  Code,  reads  as  fol- 
lows : 

"Whoever,  being  a  postmaster  or  other  person  employed  in 
or  connected  with  any  branch  of  the  postal  service,  shall  loan, 
use,  pledge,  hypothecate,  or  convert  to  his  own  use,  or  shall  de- 
posit in  any  bank  or  exchange  for  other  fimds  or  property,  ex- 
cept as  authorized  by  law,  any  money  or  property  coming  into 
his  hands  or  under  his  control,  in  any  manner  whatever,  in  the 
execution  or  under  color  of  his  office,  employment,  or  service, 
whether  the  same  shall  be  the  money  or  property  of  the  United 
States  or  not ;  or  shall  fail  or  refuse  to  remit  to  or  deposit  in  the 
Treasury  of  the  United  States,  or  in  a  designated  depository,  or 
to  account  for  or  turn  over  to  the  proper  officer  or  agent,  any 
such  money  or  property,  when  required  so  to  do  by  law  or  the 
regulations  of  the  Post-office  Department,  or  upon  demand  or 
order  of  the  Postmaster  General,  either  directly  or  through  a 
duly  authorized  officer  or  agent,  shall  be  deemed  guilty  of  em- 
bezzlement and  every  such  person,  as  well  as  everj'  other  person 
advising  or  knowingly  participating  therein,  shall  be  fined  in 
a  sum  equal  to  the  amount  or  value  of  the  money  or  property 
embezzled,  or  imprisoned  not  more  than  ten  years,  or  both.  Any 
failure  to  produce  or  to  pay  over  any  such  money  or  property, 
when  required  so  to  do  as  above  provided,  shall  be  taken  to  be 
prima  facie  evidence  of  such  embezzlement  and  upon  the  trial 
of  any  indictment  against  any  person  for  sueh  embezzlement,  it 
shall  be  prima  facie  evidence  of  a  balance  against  him  to  pro- 
duce a  transcript  from  the  account  books  of  the  Auditor  for  the 
Post-office  Department.  But  nothing  herein  shall  be  construed 
to  prohibit  any  postmaster  depositing,  under  the  direction  of 
the  Postmaster  General,  in  a  national  bank  designated  by  the 
Secretary  of  the  Treasury  for  that  purpose,  to  his  own  credit 
as  postmaster,  any  funds  in  his  charge,  nor  prevent  his  negotiat- 
ing drafts  or  other  evidences  of  debt  through  such  bank,  or 
through  United  States  disbursing  officers  or  otherwise,  when  in- 
structed or  required  so  to  do  by  the  Postmaster  General  for  the 
purpose  of  remitting  surplus  funds  from  one  post-office  to  an- 
other," 

supplants  and  takes  the  place  of  4046  and  4053,  Revised  Statutes 
of  1878.  The  prosecution  frequently  comprised  in  one  indict- 
ment against  the  same  defendant  violations  of  the  two  old  stat- 
utes, laying  a  count  under  4046  and  then  a  count  under  4053. 
These  statutes  are  for  the  purpose  of  affording  another  guaran- 


]lg  POSTAL  CRIMES 

tee  that  the  government  shall  take  no  chances  whatever  in  the 
result  of  the  judgment  of  its  employees.  A  postmaster  or  a 
postal  employee  may  be  honest,  and  intend  to  only  temporarily 
use  the  funds  that  belong  to  the  Government  which  are  in  his 
custody  or  possession,  but  such  honest  intent  with  reference  to 
the  subsequent  replacing  is  no  protection  against  prosecution 
under  this  statute.  Any  use  or  appropriation  or  the  failure  to 
deposit,  as  required  by  the  regulations,  constitutes  embezzlement 
wilhin  the  meaning  of  this  section.  The  Act  not  only  protects 
money,  but  it  likewise  protects  any  property  that  may  belong  to 
the  Postal  Department. 

The  law  of  embezzlement  is  statutory.  It  originated  in  a 
bungling  attempt  to  amend  the  Common  Law  of  larceny,  and  is 
indeed  a  sort  of  statutory  larceny.  The  methods  of  use  or  ap- 
propriation, therefore,  denoimced  in  the  statute,  are  sufficient  to 
describe  this  particular  statutory  embezzlement.  In  United 
States  vs.  Gilbert,  25  Federal  Cases  No.  15205,  the  Court  used 
the  following  language: 

"It  is  evident  that  an  embezzlement  such  as  is  contemplated 
by  this  section  may  be  proved  in  either  one  of  two  ways:  first, 
by  showing  that  in  point  of  fact  the  postmaster  has  converted  to 
his  own  use  money  order  fimds;  second,  by  his  failure  to  pay 
over  such  funds  when  required  either  by  the  law  or  regulations, 
or  when  demand  is  made  by  an  officer  authorized  for  that  pur- 
pose  Although  it  is  true  that  the  funds  were  subsequently 

paid  into  the  post-office,  and  although  it  may  also  be,  and  prob- 
ably was.  true  that  these  funds,  when  thus  converted,  were  in- 
tended and  expected  to  be  replaced,  so  that  the  Government 
should  sustain  no  loss,  which  go  very  far  toward  mitigating  the 
offense,  yet  it  is  obvious  that  the  enforcement  of  this  section  in 
all  its  strictness  is  essential  to  this  class  of  government  fimds, 
and  to  the  discouragement  of  postmasters  from  even  temporarily 
using  them  for  private  purposes.  The  intention  of  replacing 
them,  however  honestly  entertained,  cannot  be  accepted  as  an 
excuse  or  apology  for  violating  the  law,  as  one  may  be  disap- 
pointed by  unexpected  circumstances,  and  thus  not  only  endan- 
ger the  moneys  of  the  Government,  but  involve  himself  in  diffi- 
culty and  criminal  prosecution.  The  law  intends  that  funds  of 
this  character  should  be  kept  absolutely  separate  and  sacred,  as 
the  best  method,  not  only  of  keeping  the  funds  themselves  se- 
cure, but  of  guarding  the  officers  themselves  from  temptation 
and  delinquency.    A  diversion  of  money  order  funds  in  any  way 


POSTAL  CRIMES 


no 


whatever  prohibited  by  this  section,  or  for  any  time,  however 
short,  constitutes  embezzlement  under  this  Act." 

See  also  United  States  vs.  Royer,  122  Federal,  844,  whicli  ap- 
plied the  doctrine  of  refusing  to  permit  the  postal  employee  to 
use  Government  money  order  funds  in  the  payment  of  private 
debts  by  issuing  money  orders  upon  blanks  in  the  employee's 
possession;  also  Vives  vs.  United  States,  92  Federal,  355.  The 
indictment,  under  this  section,  must  allege  that  the  fimds  were 
intrusted  to  the  employee,  so  as  to  show  the  fiduciary  capacity. 
U.  S.  vs.  Eoyer,  122  Federal.  844.  It  will  be  noticed  that  the 
Act  provides  that  a  transcript  from  the  account  books  of  the 
Auditor  for  the  Post-office  Department,  sho\\nng  a  balance 
against  the  officer,  shall  be  prima  faric  evidence  of  such  embez- 
zlement. This  provision,  while  seemingly  harsh,  is  salutar>' ;  for 
otherwise,  the  officer  could  contend  that  as  a  matter  of  fact  there 
was  no  balance  against  him,  during  which  period  of  ascertain- 
ment he  could  be  enjoying  the  use  of  the  fimds.  In  United 
States  vs.  Swan,  7  N.  M.,  311,  that  portion  of  the  statute  was 
held  to  be  constitutional,  and  the  Court  there  held  that  this  pro- 
vision was  not  in  conflict  with  that  section  of  the  Constitution 
which  provides  that  in  all  criminal  prosecutions  the  accused  shall 
enjoy  the  right  to  be  confronted  with  the  Avitnessos  against  him. 
See  also  Faust  vs.  United  States,  163  U.  S.,  454;  41  Law  Ed..  224. 

In  an  indictment  against  a  public  officer  for  embezzlement  of 
public  fluids  alleged  to  have  been  in  his  possession  as  such  offi- 
cer, the  rule  applied  that  it  is  sufficient  to  charge  that  he  em- 
bezzled same,  without  more,  see  U.  S.  vs.  Mason.  179  F..  p.  552. 
which  case  also  holds  bill  sufficient  which  specifies  amount  of 
money  and  states  grand  jury  is  imable  to  give  further  infonnn- 
tion  of  description. 

In  United  States  vs.  Young.  25  Federal  710.  the  Court  passes 
upon  a  state  of  facts,  and  concludes  that  they  indicate  that  the 
prisoner  was  an  adroit  criminal  rather  than  an  insane  man.  and. 
therefore,  fixed  responsibility  upon  him  for  the  temporary  use 
of  Government  money,  under  this  statute.  It  nuist  also  be  borne 
in  mind  that  in  indictments  under  this  section,  against  employees 
of  the  postal  service  other  than  postmasters,  it  is  not  necessary 
to  allege  nor  to  prove  the  want  of  consent  of  a  postmaster  to  the 


120  POSTAL  CRIMES 

embezzlement  of  money  order  funds.  Foust  vs.  United  States, 
163  U.  S.,  454;  41  Law  Ed.,  224.  It  must  also  be  remembered 
that  indictments  under  this  section,  under  the  authority  of 
Moore  vs.  United  States,  160  U.  S.,  269 ;  40  Law  Ed.,  424,  must 
allege  that  the  funds  came  into  the  possession  of  the  defendant 
in  his  official  character  and  by  virtue  of  such  employment,  and 
specifically  set  out  the  sort  of  employment  he  was  engaged  in 
for  the  Government. 

§  73.  Rural  Carriers  Responsible  Under  This  Section. — In  Uni- 
ted States  vs.  Mann,  160  Federal,  552,  District  Judge  Speer 
held  that  the  post-office  regulations  authorizing  rural  letter  car- 
riers to  take  and  receipt  for  money  from  patrons  of  their  routes, 
to  purchase  and  forward  money  orders  to  the  persons  for  whom 
they  are  designed,  did  not  make  the  money  so  received  and  re- 
ceipted for  by  rural  carrier  from  patrons  of  his  route,  to  be  used 
in  the  purchasing  and  forwarding  of  money  orders,  while  in  the 
possession  of  such  carrier,  and  before  surrender  at  the  post-office, 
"money  order  funds,"  for  the  embezzlement  of  which  the  carrier 
could  be  prosecuted  under  Section  4046.  This  was  the  con- 
struction placed  upon  the  statute  with  reference  to  embezzle- 
ments by  rural  route  carriers  by  many  of  the  trial  courts,  though 
there  was  some  difference  of  opinion.  It  became  and  was,  how- 
ever, very  necessary  that  such  funds  should  be  protected,  and 
the  provision  in  the  new  section  which  protects  the  money  "or 
property  coming  into  his  hands,  or  under  his  control  in  any 
manner  whatever,  in  the  execution  or  under  color  of  his  em- 
ployment or  service,  whether  the  same  shall  be  the  money  or 
property  of  the  United  States  or  not,"  clearly  protects  all  such 
funds,  and  gives  to  the  statute  a  color  and  meaning  badly 
needed. 

The  reasoning  with  reference  to  allegations  in  the  indictment 
in  Dimmick  vs.  United  States,  121  Federal,  638,  though  upon 
Section  5492  rather  than  the  one  under  discussion,  may  be  inter- 
esting, because  under  that  statute,  similarly  worded,  the  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit  held  that  the  jury  must 
find,  in  order  to  convict  the  defendant,  that  the  failure  to  de- 
posit was  intentional  and  wilful,  and  that  these  words  intentional 
and  wilful  must  be  read  into  the  statute. 


POSTAL  CRIMES  121 

§  74.  Stealing  Post-office  Property Section  190  of  the  new 

Code  enlarges  the  punishment,  and  simplifies  old  Section  5475, 
and  reads  as  follows = 

"Whoever  shall  steal,  purloin,  or  embezzle  any  mail  bag  or 
other  property  in  use  by  or  belonging  to  the  Post-office  Depart- 
ment, or  shall  appropriate  any  such  property  to  his  own  nr  any 
other  than  its  proper  use,  or  shall  convey  away  any  such  prop- 
erty to  the  hindrance  or  detriment  of  the  public  service,  shall  be 
fined  not  more  than  two  hundred  dollars,  or  imprisoned  not 
more  than  three  years,  or  both." 

The  indictment  under  this  section  simply  contains  the  ordi- 
nary elements  for  the  charging  of  statutory'  theft,  or  Common 
Law  larceny.  That  portion  of  the  statute  which  relates  to  the 
use  of  any  property  demands  in  the  bill  of  indictment  to  prop- 
erly plead  the  offense  the  use  of  the  word  showing  intent  and 
wilfulness.  An  innocent  use  or  mistaken  use  under  this  section 
it  is  not  thought  would  be  an  offense.  In  United  States  vs.  Yen- 
nie,  74  Federal,  221,  the  Court  held  that  a  count  might  be  laid 
under  this  Section  and  a  count  under  5478  in  the  same  indict- 
ment, without  being  duplicitous. 

§  75.  Other  Offenses. — The  new  Code,  in  addition  to  the  of- 
fenses heretofore  mentioned,  creates  and  re-enacts  sections  relat- 
ing to  the  following: 

Conducting  Post-office  without  authority:  Section  179,  old 
Revised  Statutes  3829. 

Illegal  carrying  of  mail  by  carriers  and  others:  Section  180, 
old  Section  3981. 

Conveyance  of  mail  by  private  express  forbidden:  Section  181, 
old  Section  3982. 

Transporting  persons  unlawfully  conveying  mail :  Section  182, 
old  Section  3983. 

Sending  letters  by  private  express:  Section  183,  old  Section 

3984. 

Conveying  of  letters  over  post  roads :  Section  184.  old  Section 

3985. 

Carrying  letters  out  of  the  mail,  on  board  a  vessel:  Section 

185.  old  Section  3986. 

When  conveying  letters  by  private  person  is  lawful :  Section 

186,  old  Section  3987. 


122  POSTAL  CRIMES 

Wearing  Uniform  of  carrier  without  authority :  Section  187, 
old  Section  3867. 

Vehicles,  etc..  claiming  to  be  mail  carriers:  Section  188,  old 
Section  3979. 

Deserting  the  mail :  Section  199,  old  Section  5474. 

Delivery  of  letters  by  master  of  vessel :  Section  200,  old  Sec- 
tion 3977. 

Vessels  to  deliver  letters  at  post-office ;  oath :  Section  204.  old 
Section  3988. 

Letters  carried  in  a  foreign  vessel  to  be  deposited  in  a  post- 
office:  Section  203;  old  Section  4016. 

Using,  selling,  etc.,  canceled  stamps,  and  removing  cancella- 
tion marks  from  stamps,  etc. :  Section  205 ;  old  Section  3922, 
3923,  3924,  and  3925. 

Poisons  and  explosives  non-mailable :  Section  217,  Old  Sec- 
tion 3878 ;  First  Supplement,  247.  and  Second  Supplement,  507. 

Enclosing  higher  class  in  lower  class  matter:  Section  221,  old 
Section  3887  and  First  Supplement,  578. 

Postmaster  illegally  approving  bond.  etc. :  Section  222,  old 
Section  3947  and  First  Supplement,  45. 

False  evidence  as  to  second-class  matter :  Section  223,  old  Sec- 
tion, First  Volume  Supplement,  593  and  33  St.  L.,  823. 

Inducing  or  prosecuting  false  claims:  Section  224. 

Employees  not  to  become  interested  in  contracts :  Section  226 ; 
old  Section  412. 

Fraudulent  use  of  official  envelopes;  Section  227;  old  Acts, 
First  Supplement,  135  and  First  Supplement,  467. 

Fraudulent  increase  of  weight  of  mail:  Section  228,  old  Act, 
Second  Supplement,  778,  and  30  St.  L.,  442. 

Offenses  against  foreign  mail  in  transit  ^  Section  229;  old  stat- 
iite  4013. 

§  76.  Section  230  provides  that  every  person  employed  in 
the  postal  service  shall  be  subject  to  all  penalties  and  forfeitures 
for  the  violation  of  laws  relating  to  such  service,  whether  he  has 
taken  the  oath  of  office  or  not,  and  Section  231  provides  that  the 
words  "postal  service"  w^herever  used  in  this  chapter,  meaning 
chapter  on  offenses  against  the  postal  service,  shall  be  held  and 
deemed  to  include  the  Post-office  Department. 


CHAPTER  IV. 

COUNTERFEITING  AND   OTHER  OFFENSES  AGAINST 

THE  CURRENCY,  COINAGE,  AND  OTHER 

SECURITIES. 

§  77.  Definition  of  "Obligation  and  Other  Securities":   5413 — 147. 

78.  Cases  Further  Defining  Government  Obligation:  5430 — 150. 

79.  Obligation  of  the  United  States,  and  Forfeiture  Thereof. 

80.  Forging   or   Counterfeiting   United   States   Securities:    5414 — 148; 

5415—149;  5431—151  and  162. 

81.  Forging  and  Counterfeiting  United  States  Securities  and  National 

Bank  Notes:    5414 — 148,   149,  and   151. 

82.  Confederate  Money  Under  This  Section,  and  "Likeness  and  Simil- 

itude. ' ' 

83.  Other    Securities    Under    This    Counterfeiting    Section,    Including 

State  Bank  Notes. 

84.  Allegation  of  Knowledge  in  Counterfeiting. 

85.  Description   of   "Obligation"   or  "Counterfeit." 

86.  Circulating  Bills  of  Expired  Corporation:   5437 — 174. 

87.  Mutilating  or  Defacing  National  Bank  Note:   5189 — 176. 

88.  Imitating  National  Bank  Notes,  Printed  Advertisements  Thereon: 

5188—175. 

89.  Imitating    United    States    Securities,    or    Printing    Advertisements 

Thereon;   Business  Cards:   3708—177. 

90.  Notes  Less  Than  One  Dollar  Not  to  Be  Issued:  3583—178. 

91.  Counterfeiting   Gold   or   Silver   Coins   or   Bars:    5457   and   I   Sup., 

128—163. 

92.  "Eesemblance  or  Similitude"  Under  Above  Section. 

93.  Counterfeiting  Minor  Coins:    5458 — 164. 

94.  Making  or  Uttering  Coins  in  Eesemblance  of  Money:  5461 — 167. 

95.  Making  or  Issuing  Devices  of  Minor  Coins:   5462 — 169. 

96.  Other  Statutes  Relating  to  Coinage,  Mutilation,  Debasement,  Coun- 

terfeiting of  Dies;  Foreign  Coins:  5459—165;  150—166;  I  Sup., 
889—169;   I  Sup.,  890—170;  I  Sup.,  890,  32  St.  L.,  1223— 17L 

97.  Counterfeit  Obligations,  Etc.,  to  Be  Forfeited:  I  Sup.,  890—172. 

98.  Search  Warrant  in  Aid  of  Above  Statutes:  I  Sup.,  890—173. 

§  77.  By  the  terms  of  Section  147  of  the  new  Code,  which  is  a 
substantial  re-enactment  of  old  Section  5413,  the  words  "obliga- 

123 


124  COUNTERFEITING,  ETC. 

tion  or  other  security  of  the  United  States"  are  defined  to  mean 
all  bonds,  securities  of  indebtedness,  national  bank  currency,  cou- 
pons, United  States  notes,  Treasury  notes,  gold  certificates,  silver 
certificates,  certificates  of  deposit,  bills,  checks  or  drafts  for 
money  drawn  by  or  upon  authorized  officers  of  the  United  States, 
stamps  and  other  representatives  of  value  of  whatever  denomina- 
tion, which  have  been  or  may  be  issued  under  any  Act  of  Con- 
gress, and  the  words  "gold  certificates"  and  "silver  certificates" 
were  not  in  the  old  section. 

"When,  therefore,  in  this  chapter,  or  in  any  of  the  sections 
cited  and  treated,  the  words  "obligation  or  other  security  of 
the  United  States"  are  used,  they  will  be  understood  to  mean 
and  include  the  securities  above  mentioned,  and  any  other  rep- 
resentative of  value  issued  by  authority  of  Congress.  Judge 
"Wheeler,  in  discharging  Houghton  from  the  custody  of  the 
state  officers,  who  held  him  for  violation  of  a  state  statute  against 
counterfeiting,  held,  7  Federal,  657,  that  the  bills  issued  by 
national  banks  are  securities  of  the  United  States,  which  Con- 
gress has  power  to  protect  by  punishing  the  counterfeiting  of 
them.  He  also  held  in  the  same  case  that  the  United  States,  in 
pursuance  to  Constitutional  and  statutory  law,  have  the  exclusive 
right  to  prosecute  for  counterfeiting  Federal  obligations,  even 
though  there  be  a  state  statute  against  the  same  offense,  and  that 
a  Federal  Court  will,  upon  Jmheas  corpus,  discharge  a  defendant 
held  by  the  state  authorities  for  the  offense  of  coimterfeiting. 
To  the  same  effect  is  the  decision  by  the  same  judge  in  the  8 
Federal,  897,  ex  parte  Houghton.  In  United  States  vs.  Albert, 
45  Federal,  552,  Judge  Pardee  held  that  an  indictment  which 
charged  the  defendant  with  uttering  and  publishing  a  certain 
false,  forged,  and  altered  United  States  Treasury  Warrant,  was 
insufficient  to  sustain  a  verdict  of  guilty,  when  the  evidence 
showed  that  the  defendant  had  really  negotiated  a  genuine 
check,  drawn  by  an  authorized  officer  of  the  United  States  upon 
an  Assistant  Treasurer,  but  had  forged  the  endorsement  of  the 
name  of  the  payee.  Of  course,  the  indictment  could  have  been 
drawTi  so  as  to  allege  the  forgery  of  the  endorsement,  which 
would  have  been  entirely  sufficient,  under  the  statute ;  but,  inas- 
much as  the  indictment  charged  the  whole  instrument  to  be  false 


COUNTEEFEITING,  ETC.  125 

and  forged,  the  proof  did  not  sustain  the  charge,  because,  as  a 
matter  of  fact,  the  instrument  itself  was  not  forged,  but  gen- 
uine, the  only  forged  part  being  the  endorsement. 

The  Circuit  Court  of  Appeals  for  the  Second  Circuit,  in  Kra- 
kowski  vs.  United  States,  161  Federal,  page  88,  held  that  it  was 
not  sufficient  to  warrant  a  conviction  imder  Section  5430,  which 
makes  it  a  criminal  offense  for  any  person  to  have  or  retain  in 
his  control  or  possession  "after  a  definitive  paper  has  been 
adopted  by  the  Secretary  of  the  Treasury  for  the  obligations  and 
other  securities  of  the  United  States,  any  similar  paper  adapted 
to  the  making  of  any  such  obligation  or  other  security,  except 
under  the  authority  of  the  Secretary  of  the  Treasury,  or  some 
other  proper  officer  of  the  United  States,"  where  the  proof 
showed  that  the  defendant  had  in  his  possession  paper  which 
might  be  used  to  make  counterfeit  obligations  or  securities.  In 
other  words,  the  Court  held  that  that  portion  of  the  section  in- 
cluded as  penal  having  in  possession  without  authority,  of  the 
distinctive  paper  itself  or  of  some  paper  adapted  to  the  making 
of  Government  obligations  and  securities.  5430,  it  will  be  borne 
in  mind,  is 

§  78.  New  Section  150  upon  which  the  following  cases  may 
be  cited : 

United  States  vs.  Williams,  14  Fed.,  550. 

United  States  vs.  Smith,  40  Fed.,  755. 

United  States  vs.  Stevens,  52  Federal,  120. 

United  States  vs.  Barnett,  111  Federal,  369. 

United  States  vs.  Pitts,  112  Federal,  522. 

United  States  vs.  Conners,  111  Fed.,  732. 

§  79.  The  Neall  Case.— The  Circuit  Court  of  Appeals  for  the 
Ninth  Circuit,  in  the  case  of  Neall  vs.  United  States,  118  Fed- 
eral, 699,  determined  that  one  who  forges  a  certificate  of  deposit 
purporting  to  have  been  issued  on  behalf  of  the  United  States 
to  an  enlisted  soldier,  bj^  signing  thereto  the  name  of  the  person 
described  as  an  officer  and  deputy  Paymaster  General,  has  forged 
an  "obligation  of  the  United  States,"  and  an  indictment  there- 
for which  alleged  in  the  same  count  an  intent  to  defraud  both 
the  United  States  and  a  soldier  in  the  army,  was  not  bad  for 
duplicity,  because,  said  the  Court,  it  is  impossible  in  such  a  case 


126  COUNTERFEITING,  ETC. 

to  aver  or  prove  with  certainty  a  specific  intent  to  defraud  either 
one  rather  than  the  other,  and  the  law  will  impute  to  the  act  an 
intent  to  defraud  all  who  might  have  been  thereby  defrauded. 

That  the  intent  involved  in  the  old  statute  and  in  the  new  is 
general,  is  also  determined  in  the  case  of  United  States  vs.  Jolly. 
37  Federal,  118.  In  De  Lemos  vs.  United  States,  91  Federal. 
■197,  the  Circuit  Court  of  Appeals  for  the  Fifth  Circuit  quashed 
an  indictment  for  forgery  under  old  Section  541-4:.  where  the 
proof  showed  the  forgery  of  an  endorsement  on  a  draft,  because 
the  indictment  failed  to  charge  that  the  genuine  draft  with  tlie 
forged  endorsement,  constituted  together  a  forged  obligation  of 
the  United  States.  In  other  words,  the  decision  is  in  line  with 
the  Albert  case  referred  to  above.  In  the  Ue  Lemos  case,  the 
Court  said  that  an  indictment  which  avers  that  tbc  draft  itself 
constituted  the  obligation  which  was  forged,  and  which,  by  every 
averment,  shows  that  the  forgery  consisted  in  the  false  making 
of  the  endorsement,  is  in  itself  repugnant,  and  does  not  ])roperly 
lay  the  offense. 

§  80.  Forging  or  Counterfeiting  United  States  Securities. — Sec- 
tion 148  of  the  new  Code  takes  the  place,  and  is  in  the  same 
words  as  old  Section  5414.  and  what  has  been  observed  and  the 
citations  that  have  been  given  are  authorities  upon  this  new  sec- 
tion, which  reads  as  follows: 

"Whoever,  with  intent  to  defraud,  shall  falsely  make,  forge, 
counterfeit,  or  alter  any  obligation  or  other  security  of  the  Uni- 
ted States  shall  be  fined  not  more  than  five  thousand  dollars  and 
imprisoned  not  more  than  fifteen  years." 

Bearing  in  mind  what  has  been  said  with  reference  to  obliga- 
tion or  other  security  of  the  United  States,  it  will  be  interesting 
to  cite  in  this  connection  Section  149  of  the  new  Code,  which 
takes  the  place  of  the  old  Section  5415,  and  which  reads  as  fol- 
lows : 

"Whoever  shall  falsely  make,  forge,  or  counterfeit,  or  cause 
or  procure  to  be  made,  forged,  or  counterfeited,  or  shall  willingly 
aid  or  assist  in  falsely  making,  forging  or  counterfeiting,  any 
note  in  imitation  of.  or  purporting  to  be  in  imitation  of,  the  cir- 
culating notes  issued  by  any  banking  association  now  or  here- 
after authorized  and  acting  under  the  laws  of  the  United  States; 
or  whoever  shall  pass,  utter,  or  publish,  or  attempt  to  pass,  utter, 


COUNTERFEITING,   ETC.  127 

or  publish,  any  false,  forged,  or  counterfeited  note,  purporting 
to  be  issued  by  any  such  association  doing  a  banking  business, 
knowing  the  same  to  be  falsely  made,  forged,  or  counterfeited; 
or  whoever  shall  falsely  alter,  or  cause  or  procure  to  be  falsely 
altered,  or  shall  willingly  aid  or  assist  in  falsely  altering,  any 
such  circulating  notes,  or  shall  pass,  utter,  or  publish,  or  attempt 
to  pass,  utter,  or  publish  as  true,  any  falsely  altered  or  spurious 
circulating  note  issued,  or  purporting  to  have  been  issued, 
by  any  such  banking  association,  knowing  the  same  to  be  falsely 
altered  or  spurious,  shall  be  fined  not  more  than  one  thousand 
dollars  and  imprisoned  not  more  than  fifteen  years." 

In  the  same  connection,  and  in  place  of  old  Section  5431,  is 
new  Section  151,  which  relates  to  the  passing,  selling,  concealing, 
etc.,  of  forged  obligations,  and  which  reads  as  follows: 

"Whoever,  with  intent  to  defraud,  shall  pass,  utter,  publish, 
or  sell,  or  attempt  to  pass,  utter,  publish,  or  sell,  or  shall  bring 
into  the  United  States  or  any  place  subject  to  the  .iurisdiction 
thereof,  with  intent  to  pass,  publish,  utter,  or  sell,  or  shall  keep 
in  possession  or  conceal  with  like  intent,  any  falsely  made, 
forged,  counterfeited,  or  altered  obligation  or  other  security  of 
the  United  States,  shall  be  fined  not  more  than  five  thousand 
dollars  and  imprisoned  not  more  than  fifteen  years." 

Attention  is  also  called  to  Section  162  of  the  new  Code,  which 
reads  as  follows: 

"Whoever  shall  so  place  or  connect  together  different  parts 
of  two  or  more  notes,  bills,  or  other  genuine  instrument  issued 
under  the  authority  of  the  United  States,  or  by  any  foreign  gov- 
ernment, or  corporation,  as  to  produce  one  instrument,  with  in- 
tent to  defraud,  shall  be  deemed  guilty  of  forgery,  in  the  same 
manner  as  if  the  parts  so  put  together  were  falsel.y  made  or 
forged,  and  shall  be  fined  not  more  than  one  thousand  dollars,  or 
imprisoned  not  more  than  five  years,  or  both." 

Sections  156,  157,  158,  159,  160,  and  161  of  the  new  Code 
elaborately  include  the  offenses  originally  comprehended  in  the 
first  volume  of  the  Supplement,  page  429.  known  as  the  Act  of 
May  16,  1884,  23  St.  Large,  page  23,  and  relate  to  the  offenses 
of  counterfeiting  notes,  bonds,  etc.,  of  foreign  governments,  pass- 
ing such  forged  notes,  bonds,  etc.,  counterfeiting  notes  on  for- 
eign banks,  passing  such  counterfeited  bank  notes,  having  in 
possession  such  forged  notes,  bonds,  etc.,  and  having  unlawfully 
in  possession,  or  using,  the  plates  for  any  such  notes,  bonds,  etc. 


J  28  COUNTERFEITING,  ETC. 

The  leading  cases  under  the  old  act,  and,  therefore,  ranking 
precedents  under  the  new  sections  from  156  to  161  inclusive,  are. 
United  States  vs.  Arjona,  120  United  States,  479,  and  Bliss  vs. 
United  States,  105  Federal,  508.  In  the  Arjona  case,  the  Supreme 
Court  of  the  United  States  upheld  the  constitutionality  of  the 
Act,  and  said  that  the  United  States  not  only  had  the  power,  but 
that  it  was  their  duty  to  prevent  and  punish  the  counterfeiting 
within  their  jurisdiction  of  the  notes,  bonds,  and  other  securities 
issued  by  foreign  governments,  or  under  their  authority,  and 
that  an  act  to  prevent  transgression  against  foreign  securities 
did  not  have  to  declare  the  offense  to  be  an  offense  against  the 
law  of  nations.  In  Bliss  vs.  United  States,  the  Court  of  Appeals 
for  the  First  Circuit,  in  affirming  a  judgment  of  conviction 
against  Bliss  for  counterfeiting  a  number  of  the  notes  of  the 
Dominion  of  Canada  of  the  same  series  and  bearing  consecu- 
tive niunbers,  held  that  the  counterfeiting  of  the  same  at  differ- 
ent times,  although  all  apparently  of  the  same  series  and  ap- 
parently from  the  same  plate,  constituted  distinct  offenses,  and 
a  conviction  for  one  is  no  bar  to  a  prosecution  for  the  other. 

§  81.  Forging  and  Counterfeiting  United  States  Sescurities  and 
National  Bank  Notes. — We  now  return  to  a  discussion  of  Sec- 
tions 148,  149  and  151,  heretofore  referred  to.  In  these  sections, 
together  with  Section  162,  will  be  found  practically  all  of  the 
safe-guards  that  protect  the  genuine,  and  prosecute  for  the  forg- 
ing or  counterfeiting  of  the  government  obligation  or  national 
bank  note.  Until  the  adoption  of  the  New  Code,  there  was  no 
statute  similar  to  the  new  Section  162.  Prosecutions  for  altera- 
tions of  genuine  bills  of  small  denominations,  by  erasing  and 
pasting  and  changing  the  numerals  and  wording  thereon,  were 
had  under  5414,  which  is  now  Section  148. 

We  instantly  understand  that  one  who  prepares,  with  bad 
intent,  an  instrument  that  pretends  to  be  an  obligation  of  the 
United  States  or  national  bank  currency,  is  within  the  pui*view 
of  the  statutes.  There  is  a  nice  question,  though,  that  hinges 
about  the  latitude  and  meaning  of  the  word  ''imitation"  and 
the  word  "similitude"  as  found  in  these  old  statutes  and  in  the 
new^  ones.  In  Logan  vs.  United  States,  123  Federal,  291,  the  de- 
fendant had  robbed  a  train  and  secured  a  lot  of  forty  thousand 


COUNTEEFEITING,  ETC.  129 

dollars  of  unsigned  national  bank  notes,  consigned  by  the  Comp- 
troller of  the  Currency  to  the  National  Bank  of  Montana,  and 
thereupon  signed  fictitious  names  to  the  notes  as  President  and 
Cashier  of  the  bank,  and  passed  them.  The  first  question  raised 
by  the  defense  was,  that  inasmuch  as  the  signatures  to  the  notes 
were  those  of  fictitious  persons,  no  forgery  could  be  laid,  which 
objection  the  Court  overruled,  citing  United  States  vs.  Turner,  7 
Peters,  132,  8  Law  Ed.,  633,  and  said: 

"The  fact  that  the  names  signed  as  President  and  Cashier 
were  fictitious  is  of  no  importance.  The  public  mischief  is  the 
same  whether  the  names  forged  are  those  of  the  genuine  officers 
or  of  fictitious  persons." 

To  the  other  defense  raised  that  such  performances  did  not 
constitute  the  crime  of  forging  notes  under  Section  5415,  the 
Court  answered  that  national  bank  notes  to  which  signatures 
have  been  forged,  and  which  have  been  put  in  circulation,  are 
redeemable  by  the  Act  of  July  28,  1892,  27  St.,  322,  and  this  re- 
demption clinches  the  offense,  rather  than  acting  as  a  defense 
thereto,  and  a  conviction  of  the  defendants  was  affirmed. 

§  82.  Confederate  Money. — In  United  States  vs.  Wilson,  44 
Federal,  751,  Judge  Hallett,  in  passing  upon  an  indictment 
against  Wilson  for  having  passed  a  Confederate  States  note, 
said: 

"It  is  only  necessary  to  say  that  the  offense  defined  in  this 
section  and  in  other  sections  which  have  been  referred  to  in  ar- 
gument upon  this  motion,  is  that  of  passing,  uttering,  or  pub- 
lishing any  counterfeit  note.  The  note  must  purport  to  be  issued 
by  such  an  association  doing  a  banking  business.  This,  so  far  as 
disclosed,  was  not  a  counterfeit  at  all.  It  was  a  genuine  note; 
that  is  to  say,  it  was  a  genuine  note  of  the  Confederate  States 
of  America,  and  therefore,  it  was  not  counterfeit  in  the  sense  of 
this  statute,  or  of  any  statute,  and  then  it  was  not  on  its  face,  or 
in  any  way,  a  note  of  any  national  bank,  or  of  the  United  States. 
There  were  no  words  to  make  it  such.  The  coimterfeit  referred 
to  in  the  statute  must,  at  all  events,  have  a  greater  resemblance 
to  the  current  money  of  the  United  States  than  to  anything  else. 
This  note,  in  the  size  and  shape  and  color,  and  in  the  denomina- 
tion of  the  figures  upon  it,  has  some  resemblance  to  the  current 
notes  in  circulation  as  money,  but  that  is  not  enough  to  make  it 
a  counterfeit  of  the  circulating  notes  of  the  United  States." 
To  the  same  effect  is  United  States  vs.  Kuhl,  85  Federal,  624, 


130  COUNTERFEITING,   ETC. 

the  Court  saying  that  an  ordinary  Confederate  States  five-dollar 
note  does  not  bear  to  the  national  currency  the  similitude  con- 
templated in  Revised  Statutes  5430,  notwithstanding  such  notes 
are  frequently  accepted  by  mistake  as  money.  In  this  same  case, 
the  Court  said  that  the  "similitude"  contemplated  in  Revised 
Statute  5430  is  such  a  likeness  or  resemblance  as  to  be  calcu- 
lated to  deceive  an  honest,  sensible,  and  unsuspecting  man  of 
ordinary  care  and  observation,  when  dealing  with  a  supposed 
honest  man. 

§  83.  Other  Securities,  Including  State  Bank  Notes. — Judge 
Hanford,  in  91  Federal,  United  States  vs.  Fitzgerald,  left  the 
question  of  similitude  and  similarity  and  imitation  to  the  jury, 
upon  a  case  against  Fitzgerald  for  having  in  his  possession  a 
hundred  shares  of  the  capital  stock  of  the  Denver  Mining  Com- 
pany, of  the  par  value  of  one  thousand  dollars,  the  certificate  of 
which  stock,  in  its  size,  quality  of  paper,  style  of  printing,  re- 
sembled a  United  States  bond  for  the  sum  of  one  thousand  dol- 
lars, and  further  resembled  a  United  States  bond  for  the  said 
amount  in  that  it  had  the  words  "The  United  States"  printed 
across  the  face  thereof,  and  the  paper  also  had  heavy  green  bor- 
der and  scroll  work  resembling  somewhat  the  ornamentation  of 
United  States  bonds.  In  leaving  the  question  to  the  jury,  he 
said: 

"The  similitude  must  be  in  such  a  degree  as  to  furnish  a  re- 
semblance so  near  to  the  Government  obligations  or  securities 
that  it  could  be  used  to  deceive  a  person  of  ordinary  intelligence, 
who  is  acting  with  ordinary  care  in  a  business  transaction.  The 
resemblance  is  sufficient  for  the  purpose  if  you  believe  that  it 
would  probably  deceive  a  person  taken  unawares  in  dealing  with 
a  person  who  he  believed  was  acting  honestly." 

In  United  States  vs.  Stevens,  52  Federal,  120,  District  Judge 
Paul  held  in  substance  that  a  note  that  was  originally  issued  by 
a  duly  authorized  state  bank,  which  was  a  legal  note  at  the  time 
of  its  issuance,  but  afterwards  became  utterly  worthless  by  the 
insolvency  of  the  bank,  subjected  the  holder  thereof  to  prosecu- 
tion under  Section  5430,  if  it  was  in  liis  possession  with  intent 
to  sell  or  otherwise  use  it,  and  pass  it,  as  a  genuine  note  or  obli- 
gation of  the  United  States.  It  is  not  thought  that  this  is  good 
law.    Congress  certainly  has  no  authority  to  prevent  the  issuance 


COUNTERFEITING,   ETC.  131 

of  state  bank  notes.  It  simply  taxes  them  out  of  existence,  and 
one  who  passed  a  worthless  state  bank  note,  contending  that  it 
was  a  genuine  United  States  obligation,  would  only  be  an  of- 
fender against  the  state  law  for  cheating  or  swindling.  His 
statement  with  reference  to  the  instrument  does  not,  within  the 
meaning  of  the  law,  constitute  it  a  forgery,  nor  give  it  such  like- 
ness and  similitude  as  will  make  it  contraband  under  the  Fed- 
eral statute. 

Judge  Bellinger,  in  United  States  vs.  Conners,  111  Federal, 
734,  decided  that  a  bill  or  note  issued  by  the  state  bank  of  New 
Brunswick,  New  Jersey,  which  thereafter  became  insolvent  and 
worthless,  but  which  was  alleged  in  the  indictment  to  be  in  the 
possession  of  Connei*s  for  evil  purposes,  and  that  the  same  was 
in  similitude  of  an  obligation  and  security  issued  under  the  au- 
thority of  the  United  States,  was  not  in  the  "similitude"  within 
the  meaning  of  Section  5430,  since  it  did  not  purport  to  be  an 
obligation  or  security  of  the  United  States,  and  an  indictment 
for  a  violation  of  that  section  did  not  charge  an  offense  where 
it  showed  that  the  instrument  referred  to  was  such  a  bank  bill. 

In  United  States  vs.  Beebe,  149  Federal,  618,  Judge  Archbald, 
in  passing  upon  a  case  which  was  based  upon  the  defendant  pass- 
ing a  genuine  note,  which  had  theretofore  been  issued  by  a  state 
bank,  even  though  at  that  time  the  note  was  worthless,  and  may 
have  had  some  resemblance,  by  reason  of  its  color,  to  a  United 
States  note,  determined  that  no  offense  against  the  United 
States  had  been  committed.    He  said : 

"There  must  at  least  be  such  a  resemblance  if  not  simulation, 
as  is  not  only  calculated  to  deceive  a  person  of  ordinary  intelli- 
gence, but  as  enables  us  to  say  with  some  degree  of  certainty 
that  in  disposing  of  or  using  it,  the  party  charged  was  evidently 
trying  to  palm  it  off  as  a  genuine  obligation  of  the  United  States 

(citing  and   distinguishing  cases).     A  broader  ruling 

would  make  all  state  bank  issues  obnoxious;  with  regard  to 
which,  it  may  also  be  further  observed  that  state  currency  is  not 
prohibited,  but  is  simply  taxed  out  of  existence ;  notwithstanding 
which,  if  anyone  desires  to  put  out  notes  or  bills  to  pass  as 
money,  there  is  nothing  to  prevent  it,  to  say  nothing  of  being 
charged  with  counterfeiting,  if  they  happen  to  prove  worthless. 
The  Federal  Government  is  only  concerned  with  pro- 
tecting the  people  against  spurious  or  counterfeited  imitations  of 


132  COUNTKRFEITING,   ETC. 

the  money  to  which  it  gives  currency,  and  to  those  the  Act  is  to 
be  confined.  It  cannot,  indeed,  be  extended  further,  without  en- 
trenching upon  the  reserved  rights  of  the  states,  which  we  must 
be  careful  to  respect,  if  the  dual  form  of  government  which  we 
have  is  to  be  preserved." 

§  84.  Allegation  of  Knowledge. — These  statutes  being  highly 
penal,  and  being  given  life  only  when  there  is  evil  intent,  make 
it  absolutely  necessary  that  the  indictment  allege,  and  the  proof 
show,  either  by  circumstantial  or  direct  evidence,  the  intent  to 
defraud  in  making,  forging,  or  altering,  and  the  knowledge  of 
such  falseness,  before  the  passing  is  imlawful.  The  Circuit 
Court  of  Appeals  for  the  First  Circuit,  in  Gallagher  vs.  United 
States,  144  Federal,  page  87,  held  that  in  a  prosecution  luider 
Section  5415,  for  passing  false  or  forged  national  bank  notes, 
knowledge  that  they  were  falsely  made  is  an  essential  element 
of  the  offense,  and  there  must  be  some  evidence  of  such  knowl- 
edge, circumstantial  or  otherwise,  aside  from  proof  merely  that 
the  spurious  note  was  passed.    The  Court  says: 

"The  fact  of  knowledge  may  be  proven  in  a  variety  of  ways. 
There  should,  however,  always  be  some  evidence  tending  to  show 
Icnowledge  beyond  that  which  results  from  mere  proof  that  the 
spurious  bill  was  passed.  This  rule  results  from  the  nature  of 
the  transaction,  because,  as  is  very  well  known,  spurious  notes 
are  so  skilfully  fashioned  that  one  might  naturally  and  inno- 
cently, as  is  oftentimes  the  case,  receive  and  pass  them  in  the 
whirl  of  business.  In  such  a  case,  intent  and  guilty  knowledge, 
within  the  meaning  of  the  statute,  would  be  absent ;  hence,  the 
rule  requiring  something  more  than  evidence  of  the  mere  passage 
of  the  counterfeit  paper." 

It  is  very  true  that  such  evidence  may  be  gathered  from  a 
field  of  circumstances,  the  manner  in  which  the  payment  was 
made,  the  fact  that  a  large  bill  was  offered  when  the  defendant 
had  convenient  change  at  hand ;  the  placing  of  the  money  quietly 
and  sliding  it  along  the  table  or  counter  or  receptacle ;  previous 
attempts  to  pass  the  same  coin  or  bill  and  the  rejection  thereof, 
or  the  frequent  passing  of  the  same  sort ;  conflicting  statements, 
etc.,  etc.  In  United  States  vs.  Carll,  105  United  States,  611,  the 
Supreme  Court  held  that  the  allegation  knowingly  and  wilfully 
was  absolutely  necessary  to  the  validity  of  the  indictment. 

§  85.  Description. — Accurateness    and    preciseness    are    indis- 


COUNTEKFEITTNG,    ETC.  133 

pensable  in  the  allegations  of  the  indictment,  when  it  comes  to 
describing  the  false  instrument  passed  or  made.  In  United 
States  vs.  Howell,  64  Federal,  110,  the  Court  held  that  an  in- 
dictment which  specified  the  particular  kind  of  obligation,  the 
denomination  of  such  obligation,  the  allegation  that  the  bill  pur- 
ported to  be  a  United  States  note,  and  giving  the  denomination 
thereof,  was  sufficient.  It  is  thought,  however,  to  be  the  better 
practice  to  set  out  the  main  features  of  the  front  and  back  of  the 
bill  or  security.  Of  course,  it  is  not  meant  to  say  that  pictures 
or  impossible  delineations,  or  even  difficult  drawings,  are  to  be 
incorporated  in  the  bill,  but  the  large  numbers  and  wording,  and 
identifying  issues  or  series  of  both  the  front  and  back  of  the  bill 
should  be  specifically  set  forth.  It  is  fatal  variance  for  the  in- 
dictment to  incorrectly  describe  the  alleged  counterfeit  bills  in 
respect  to  the  bill  number,  U.  S.  vs.  Mason,  12  Blatch,  (U.  S.) 
497.  If  the  grand  jury  does  not  have  the  bill  it  may  so  allege 
and  describe  as  well  as  the  circumstances  will  permit,  U.  S.  vs. 
Howell,  64  F.,  110. 

§  86.  Circulating  Bills  of  Expired  Corporation. — Section  174  of 
the  New  Code  practically  re-enacts  Section  5437.  We  have 
seen  that  under  ordinary  circumstances,  unless  there  be  some 
fatally  misleading  similarity,  imitation,  or  similitude,  the  pass- 
ing of  the  note  of  a  defimct  bank  is  not  a  Federal  offense.  Sec- 
tion 174  of  the  New  Code  inhibits  the  issuing  or  uttering  of  any 
note  or  obligation  or  bill  or  check  or  draft  by  any  officer  of  an 
expired  banking  corporation.  The  statute,  of  course,  does  not 
apply  to  one  who  is  not,  or  was  not,  connected  w'ith  the  institu- 
tion during  its  life. 

§  87.  Mutilating  or  Defacing  National  Bank  Note. — Section 
5189  of  the  old  statutes  has  been  so  changed  as  to  read  as  fol- 
lows, in  Section  176  of  the  New  Code : 

"Whoever  shall  mutilate,  cut,  disfigure,  or  perforate  with 
holes,  or  unite  or  cement  together  or  do  any  other  thing  to  any 
bank  bill,  draft,  note,  or  other  evidence  of  debt,  issued  by  any 
national  banking  association,  or  shall  cause  or  procure  the 
same  to  be  done,  with  intent  to  render  such  bank  bill,  draft, 
note,  or  other  evidence  of  debt  unfit  to  be  re-issued  by  said 
association,  shall  be  fined  not  more  than  one  hundred  dollars,  or 
imprisoned  not  more  than  six  months,  or  both." 


334  COUNTERFEITING,  ETC. 

Under  the  old  statute,  the  person  doing  the  things  therein  de- 
nounced was  liable  to  a  penalty  of  fifty  dollars,  recoverable  by 
the  association,  but  imder  the  new  statute,  the  act  becomes  an 
offense  punishable  by  indictment.  Under  the  present  section,  as 
well  as  under  the  old  statute,  the  prosecution  must  allege,  and 
the  proof  must  show  that  the  mutilation,  defacing,  etc.,  of  the 
note,  bill,  or  draft,  must  have  been  with  the  intent  to  unfit  the 
same  to  be  re-issued  by  the  association  issuing  it. 

§  88.  Imitating  National  Banking  Notes  with  Printed  Adver- 
tisement Thereon. — Section  175  of  the  New  Code  takes  the  place 
of  Section  5188,  and  reads  as  follows: 

"It  shall  be  unlawful  to  design,  engrave,  print,  or  in  any  man- 
ner make  or  execute,  or  to  utter,  issue,  distribute,  circulate,  or 
use  any  business  or  professional  card,  notice,  placard,  circular, 
handbill,  or  advertisement  in  the  likeness  or  similitude  of  any 
circulating  note  or  other  obligation  or  security  of  any  banking 
association  organized  or  acting  under  the  laws  of  the  United 
States  which  has  been  or  may  be  issued  under  any  act  of  Con- 
gress, or  to  write,  print,  or  otherwise  impress  upon  any  such 
note,  obligation,  or  security,  any  business  or  professional  card, 
notice,  or  advertisement,  or  any  notice  or  advertisement,  or  any 
matter  or  thing  whatever.  Whoever  shall  violate  any  provision 
of  this  section  shall  be  fined  not  more  than  one  hundred  dollars, 
or  imprisoned  not  more  than  six  months,  or  both." 

The  new  section  becomes  an  offense  wherein  the  penalties  are 
recovered  by  the  public  prosecutor  through  indictment  or  infor- 
mation. Under  the  old  statute,  the  offender  was  liable  to  a  pen- 
alty of  one  hundred  dollars,  recoverable  on  the  suit  of  the  in- 
former, one-half  of  which  went  to  the  informer.  Under  the  au- 
thority of  United  States  vs.  Laescki,  29  Federal,  699.  the  penalty 
provided  by  the  old  section  could  only  be  recovered  by  a  qui  tarn 
action  brought  by  an  informer,  and  could  not  be  recovered  by  in- 
dictment at  the  instance  of  the  Government. 

This  section  is  intended  alone  for  the  purpose  of  protecting 
national  bank  notes,  and  does  not,  by  construction  or  otherwise, 
relate  to  the  protection  of  any  other  government  security  or  ob- 
ligation. The  statute  really  contains  two  offenses:  the  one 
against  making  any  token,  advertisement,  circular,  etc.,  in  the 
likeness  or  similitude  of  any  circulating  note  or  other  obligation ; 
and  the  other  is  directed  against  the  placing  of  any  writing, 


COUNTERFEITING,   ETC.  135 

printing  notice,  or  any  other  advertisement  upon  one  of  the  cir- 
culating notes  or  bills  of  the  national  bank  currency.  "Adver- 
tisement" to  be  read  into  entire  statute,  Kaye  vs.  U.  S.,  177 
F.,  p.  147. 

§  89.  Imitating  United  States  Securities  or  Printing  Business 
Cards  on  Them. — Closely  akin  to  the  section  above  discussed  is 
new  Section  177.  which  reads  as  follows: 

"It  shall  not  be  lawful  to  design,  engrave,  print,  or  in  any 
manner  make  or  execute,  or  to  utter,  issue,  distribute,  circulate, 
or  use  any  business  or  professional  card,  notice,  placard,  circu- 
lar, hand-bill,  or  advertisement,  in  the  likeness  or  similitude  of 
dny  bond,  certificate  of  indebtedness,  certificate  of  deposit,  cou- 
pon. United  States  note,  or  other  obligation  or  security  of  the 
United  States  which  has  been  or  may  be  issued  under  or  author- 
ized by  any  Act  of  Congress  heretofore  passed  or  which  may 
hereafter  be  passed ;  or  to  write,  print,  or  otherwise  impress  upon 
any  such  instrument,  obligation,  or  security,  any  business  or 
professional  card,  notice,  or  advertisement,  or  any  notice  of  ad- 
vertisement of  any  matter  or  thing  whatever.  Whoever  shall 
violate  any  provision  of  this  section  shall  be  fined  not  more  than 
five  hundred  dollars." 

This  section  takes  the  place  of  old  Section  3708,  and  is  more 
severe  in  penalty.  The  penalty  of  the  old  section  was  not  re- 
coverable except  upon  the  suit  of  an  informer,  and  the  authority 
of  the  United  States  vs.  Laescki,  29  Federal,  699,  governed.  The 
new  section  authorizes  prosecution  by  information  or  indictment, 
and  by  the  government,  instead  of  waiting  for  an  informer  to 
move.  This  statute,  like  the  preceding,  protects  from  defacement 
securities,  moneys,  notes,  and  other  obligations  of  the  United 
States,  and  also  prevents  the  making,  for  advertising  purposes, 
of  any  card  or  other  circular  in  likeness  or  similitude  to  any  such 
government  security  or  obligation. 

§  90.  Notes  of  Less  Than  One  Dollar  Not  to  Be  Issued. — Section 
3583  of  the  Revised  Statutes  of  the  United  States,  that  has  been 
the  law  since  1878,  has  simply  been  re-enacted  in  Section  178  of 
the  New  Code,  which  went  into  effect  January  1.  1910.  This 
section  reads  as  follows : 

"No  person  shall  make,  issue,  circulate,  or  pav  out  any  note, 
check,  memorandum,  token,  or  other  obligation  for  a  less  sum 
than  one  dollar,  intended  to  circulate  as  money,  or  to  be  received 


136  COUNTERFEITING,   ETC. 

or  used  in  lieu  of  lawful  money  of  the  United  States ;  and  every 
person  so  offending  shall  be  fined  not  more  than  five  hundred 
dollars,  or  imprisoned  not  more  than  six  months,  or  both." 

The  old  section  simply  had  the  additional  words,  "at  the  dis- 
cretion of  the  Court."  These  words  were  left  off  of  the  new 
section,  which,  however,  does  not  alter  the  punishment,  because 
the  same  is  in  the  discretion  of  the  Court  under  the  new  section, 
and  he  may  assess  either  or  both,  as  he  pleases. 

There  seems  to  be  no  doubt,  so  far  as  the  decisions  are  con- 
cerned, that  a  personal  check  drawn  upon  a  bank  in  the  settle- 
ment of  an  obligation,  and  not  to  be  circulated  as  money,  is  en- 
tirely lawful,  and  is  not  interfered  with  by  the  above  section. 
So  early  as  1878  the  Supreme  Court  of  the  United  States,  in  the 
case  of  the  United  States  against  Van  Auken,  96  U.  S.,  page  366, 
determined  that  the  section  was  intended  to  prevent  the  issuance 
of  tokens  w-hich  were  to  circulate  as  money.  That  decision  has 
since  been  followed,  directly  and  persuasively,  in  Hollister  vs. 
Merchant  Institute,  111  U.  S.,  63;  United  States  vs.  White,  19 
Federal,  724;  in  re  Aldrich,  16  Federal,  370;  United  States  vs. 
Rousopulous,  95  Federal,  978 ;  Zion  Institute,  etc.,  vS.  Hollister, 
3  Utah,  301 ;  Martin  Lumber  Company  vs.  Johnson,  70  Ark.,  219 ; 
66  S.  W.,  925. 

Of  course,  anything  I  have  said  here  does  not  mean  that  indi- 
viduals or  business  concerns  should  issue,  for  the  payment  of 
help,  any  sort  of  a  token  that  the  employees  could  not  immedi- 
ately take  to  a  bank  and  receive  the  cash  thereon. 

The  statute  is  simply  for  the  purpose  of  confining  the  power 
to  issue  money  in  the  Constitutional  channel,  to  wit,  the  hands 
of  Congress,  and  not  to  individuals,  or  firms,  or  concerns. 

§  91.  Counterfeiting  Gold  or  Silver  Coins  or  Bars. — "Without 
substantial  alteration,  old  Section  5457  and  the  Amendment,  as 
contained  in  the  First  Supplement,  128,  becomes  Section  163  of 
the  new  Code,  in  the  following  words : 

"Whoever  shall  falsely  make,  forge,  or  counterfeit,  or  cause 
or  procure  to  be  falsely  made,  forged,  or  counterfeited,  or  shall 
willingly  aid  or  assist  in  falsely  making,  forging,  or  counterfeit- 
ing, any  coin  or  bars  in  resemblance  or  similitude  of  the  gold  or 
silver  coins  or  bars  which  have  been,  or  hereafter  may  be,  coined 
or  stamped  at  the  mints  and  assay  offices  of  the  United  States, 


COUNTERFEITING,  ETC.  137 

or  in  resemblance  or  similitude  of  any  foreign  gold  or  silver 
coin,  which  by  law  is,  or  hereafter  may  be,  current  in  the  United 
States,  or  are  in  actual  use  and  circulation  as  money  within  the 
United  States;  or  whoever  shall  pass,  utter,  publish,  or  sell,  or 
attempt  to  pass,  utter,  publish,  or  sell,  or  bring  into  any  foreign 
place,  knowing  the  same  to  be  false,  forged,  or  counter- 
feit, with  intent  to  defraud  any  body  politic  or  corporate, 
or  any  person  or  persons  whomsoever,  or  shall  have  in 
his  possession  any  such  false,  forged,  or  counterfeited  coin  or 
bars,  knowing  the  same  to  be  false,  forged,  or  counterfeited,  with 
intent  to  defraud  any  body  politic  or  corporate,  or  any  person 
or  persons  whomsoever,  shall  be  fmed  not  more  than  five  thou- 
sand dollars  and  imprisoned  not  more  than  ten  years." 

The  same  care  in  the  drafting  of  indictments,  in  the  alleging 
of  the  fraudulent  intent,  is  necessary,  as  in  prosecutions  for 
passing  other  forged  instruments.  "When  the  indictment  is  for 
forging  or  making,  the  allegation  of  knowledge  is  unnecessary, 
because  the  law  presumes  that  one  who  makes  has  knowledge  of 
its  falseness.  U.  S.  vs.  Otney,  31  Federal,  68;  U.  S.  vs.  Bicksler. 
1  Mackey,  341;  U.  S.  vs.  Peters,  2  Abb.  (U.  S.),  494;  U.  S.  vs. 
Russell,  22  Federal,  390.  When,  however,  the  charge  is  for 
passing,  knowledge  must  be  alleged  and  shown.  Of  course,  such 
knowledge  may  be  shown  by  either  direct  or  circumstantial  evi- 
dence, but  there  must  be  something  from  which  the  jury  can 
conclude,  beyond  a  reasonable  doubt,  that  the  person  passing 
had  knowledge  that  the  coin  w^as  spurious;  otherwise,  the  act  is 
entirely  innocent. 

§  92.  Resemblance  or  Similitude. — The  same  difficulties  have 
been  encountered  and  overcome  by  the  Courts  under  the  coin 
statutes  as  w'ere  discussed  under  Sections  148  and  149,  supra. 
A  coin  or  bar  would  not  be  called  counterfeit,  within  the  mean- 
ing of  a  criminal  statute,  unless  there  appeared  to  be  some  re- 
semblance or  similitude  and  an  effort  to  make  such  resemblance 
and  similitude.  It  w'ould  seem  to  be  the  better  public  policy  to 
accept  the  test  prescribed  in  United  States  vs.  Hargrave,  26  Fed- 
eral Cases  No.  15306,  where  it  was  said  that  it  was  not  a  question 
whether  the  spurious  coin  would  deceive  a  person  of  ordinary 
skill  and  caution,  but  whether  it  was  capable  and  designed  to  be 
used  for  deceiving  the  incautious  and  unskillful,  to  test  which 
seems  to  be  more  broadly  determined  in  the  following  words,  to 


138  COUNTERFEITING,   ETC. 

wit :  "  If  the  spurious  article  has  not  a  resemblance  strong  enough 
to  deceive  persons  exercising  ordinary  caution,  then  the  passing 
is  not  a  crime,"  as  cited  in  and  supported  by  Second  Volume 
Federal  Statutes  Annotated,  page  311 ;  United  States  vs.  Ayl- 
ward,  24  Federal  Cases  No.  14484.  A  very  fair  test  is  that  pre- 
scribed in  United  States  vs.  Hopkins,  26  Federal,  443,  where 
the  Court  said : 

"It  is  not  necessary  that  the  resemblance  should  be  exact  in 
all  respects.  The  resemblance  is  sufficient  if  the  coins  are  so  far 
alike  that  the  counterfeit  coin  is  calculated  to  deceive  a  person 
exercising  ordinary  caution  and  observation  in  the  usual  trans- 
action of  business,  though  the  counterfeit  would  not  deceive  a 
person  who  was  expert,  or  has  particular  experience  in  such 
matters. ' ' 

See  also  U.  S.  vs.  Abrams,  18  Federal,  823;  U.  S.  vs.  Eussell, 
22  Federal,  390.  In  United  States  vs.  Lissner,  12  Federal,  840, 
the  Court  held  that  the  removal  of  an  appreciable  amount  of  the 
silver  from  a  coin,  w^hich  was  replaced  with  an  inferior  metal, 
amounted  to  counterfeiting. 

In  United  States  vs.  Owens,  37  Federal,  112,  District  Judge 
Hammond  held  that  in  a  prosecution  imder  a  general  statute  of 
the  sort  luider  discussion,  it  was  not  essential  for  the  indictment 
to  aver  that  the  alleged  counterfeits  were  in  the  likeness  and 
similitude  of  genuine  notes  (coins)  authorized  by  the  act  of 
Congress  under  which  they  purported  to  have  been  issued.  Such 
an  allgation  may  be  necessary  under  a  special  statute,  but  in 
providing  a  general  law  for  forgery,  such  specific  allegation  is 
imnecessary.  The  words  "false,  forged,  and  counterfeited  obli- 
gation of  the  United  States"  are  sufficient  to  imply  that  the  al- 
leged counterfeit  purports  to  be  a  genuine  obligation  of  the 
United  States,  and  are  a  sufficient  averment  that  there  is,  or  w^as, 
outstanding,  authorized  by  law,  genuine  obligations  of  the  sort 
the  alleged  imitation  was  intended  to  be  a  forgery  or  counterfeit. 

An  indictment  under  this  section  must  aver  the  intention  to 
defraud,  but  it  need  not  specify  the  person,  if,  as  a  matter  of 
fact,  the  grand  jury  does  not  know  in  particular,  and  the  indict- 
ment may,  therefore,  allege  that  the  forging  and  having  in  pos- 
session was  for  the  purpose  of  defrauding  persons  to  the  grand 
jurors  unknown,  if  such  be  the  facts.     Of  course,  in  a  count  for 


COUNTERFEITING,  ETC.  139 

passing  or  uttering,  the  indictment  should  allege  the  intent  to 
defraud  the  person  upon  whom  the  coin  was  passed.  Whether 
for  having  in  possession  or  for  passing,  there  must  be,  as  above 
stated,  an  allegation  of  knowledge  with  reference  to  its  vice. 
U.  S.  vs.  Be.iandio,  1  Woods,  294. 

§  93.  Counterfeiting  Minor  Coins. — Section  5458  of  the  old 
statutes  is  displaced  by  Section  164  of  the  New  Code,  in  the  fol- 
lowing terms : 

"Whoever  shall  falsely  make,  forge,  or  counterfeit,  or  cause 
or  procure  to  be  falsely  made,  forged,  or  counterfeited,  or  shall 
willingly  aid  or  assist  in  falsely  making,  forging,  or  counter- 
feiting any  coin  in  the  resemblance  or  similitude  of  any  of  the 
minor  coins  which  have  been,  or  hereafter  may  be,  coined  at  the 
mints  of  the  United  States ;  or  whoever  shall  pass,  utter,  publish, 
or  sell,  or  bring  into  the  United  States  or  any  place  subject  to  the 
jurisdiction  thereof  from  any  foreign  place,  or  have  in  his  pos- 
session any  such  false,  forged,  or  coimterfeited  coin,  with  intent 
to  defraud  any  person  whomsoever,  shall  be  fined  not  more  than 
one  thousand  dollars  and  imprisoned  not  more  than  three  years." 

This  statute,  it  will  be  noticed,  includes  all  of  the  elements  and 
ingredients,  both  with  reference  to  allegation  and  proof  that 
have  been  treated  under  Sections  163,  148  and  149.  It  must  be 
understood  that  the  minor  coins  referred  to  in  the  section  are 
those  defined  and  created  by  Section  3515  of  the  old  statute, 
which  were  a  five-cent  piece,  a  three-cent  piece,  and  a  one-cent 
piece.  An  indictment,  therefore,  which  charged  the  forging  and 
counterfeiting  of  minor  silver  coinage  is  contradictory,  and  al- 
leges no  offense.    U.  S.  vs.  Bicksler,  1  Mackey,  341. 

§  94.  Making  or  Uttering  Coins  in  the  Resemblance  of  Money. — 
New  Section  167,  in  the  following  words : 

"Whoever,  except  as  authorized  by  law,  shall  make  or  cause 
to  be  made,  or  shall  utter  or  pass,  or  attempt  to  utter  or  pass, 
any  coins  of  gold  or  silver  or  other  metal,  or  alloys  of  metals,  in- 
tended for  the  use  and  purpose  of  current  money,  whether  in 
the  resemblance  of  coins  of  the  United  States  or  of  foreign  coun- 
tries, or  of  original  design,  shall  be  fined  not  more  than  three 
thousand  dollars,  or  imprisoned  not  more  than  five  years,  or 
both," 

displaces  old  Section  5461.     Sections  163  and  164,  above  men- 
tioned, relate  alone  to  gold  and  silver  coins  or  bars,  and  the  minor 


;140  COUNTERFEITING,  ETC. 

coinage,  while  Section  167  is  what  may  be  termed  a  blanket  stat- 
ute, that  denounces  as  unlawful,  any  making,  uttering,  or  pass- 
ing, etc.,  of  any  coin,  whether  of  gold  or  silver  or  other  metal, 
intended  for  the  use  and  purpose  of  current  money,  and  this 
whether  the  design  be  in  imitation  of  any  United  States  obliga- 
tion, or  whether  it  be  in  original  design. 

This  statute,  if  enforced,  is  capable  of  being  used  for  much 
good,  in  the  stamping  out  of  the  practice  of  certain  large  indus- 
tries, that  pay  their  labor,  and  thus  enforce  a  practical  serfdom, 
with  checks  or  due  bills  or  trade  vouchers  which  pass  as  current 
money  in  the  camp  or  town  that  such  industry  owns  or  domi- 
nates. The  fact  part  of  the  statute  is  found  in  the  words  "in- 
tended for  the  use  and  purpose  of  current  money,"  and,  of 
course,  this  can  be  made  to  appear  either  by  direct  or  circum- 
stantial testimony.  The  jury  should  be  instructed  that  the  tokens 
were  intended  for  the  use  and  purpose  expressed  in  the  statute, 
and  they  should  so  find,  beyond  a  reasonable  doubt,  before  a 
conviction  could  be  had. 

§  95.  Making  or  Issuing  Devices  of  Minor  Coins. — For  the  pro- 
tection of  the  minor  coinage,  as  defined  by  old  statute  3515,  as 
hereinbefore  noticed,  the  old  section  5462  becomes  Section  168 
in  the  New  Code,  which  reads  as  follows: 

"Whoever,  not  lawfully  authorized,  shall  make,  issue,  or  pass, 
or  cause  to  be  made,  issued,  or  passed,  any  coin,  card,  token,  or 
device  in  metal,  or  its  compounds,  which  may  be  intended  to  be 
used  as  money  for  any  one-cent,  two-cent,  three-cent,  or  five-cent 
piece,  now  or  hereafter  authorized  by  law,  or  for  coins  of  equal 
value,  shall  be  fined  not  more  than  one  thousand  dollers,  and  im- 
prisoned not  more  than  five  years." 

In  United  States  vs.  Roussopulous,  95  Federal,  977,  the  Court 
held  that  circular  metal  tokens,  which,  though  of  similar  color, 
differed  in  size  and  w^holly  undesigned  from  any  coin  of  the  Uni- 
ted States,  and  are  only  from  one-sixth  to  one-fifteenth  the  weight 
of  the  coin  the  nearest  the  same  size,  and  which  do  not  purport 
to  be  money  or  obligations  to  pay  money,  but  contain  the  names 
of  business  concerns,  with  the  statement  that  they  are  good  for 
a  certain  value  in  merchandise,  are  not  tokens  in  the  likeness  and 
similitude  of  coins  of  the  United  States,  nor  intended  to  circu- 
late as  money,  and  to  be  received  and  used  in  lieu  of  lawful 


COUNTERFEITING,   ETC.  141 

money,  within  the  prohibition  of  Section  5462,  Section  3583,  or 
the  Act  of  Februarj^  tenth,  1891. 

It  will  be  borne  in  mind,  however,  that  Section  168  is  not 
nearly  so  broad  as  Section  167.  It  is  true  of  168,  as  it  was  of  167, 
that  there  must  be  an  intent  to  use  the  token  as  money,  which 
must  be  charged,  proven,  and  found,  as  other  essential  facts  in 
criminal  cases. 

§  96.  Other  Statutes  Relating  to  the  Coinage. — Section  165 
takes  the  place  of  the  old  Section  5459,  as  amended  by  the  Act 
shown  at  page  579  of  the  Second  Supplement.  This  section 
punishes  the  fraudulent  mutilation  or  lightening  of  the  coinage. 
There  seems  to  be  nothing  in  the  old  law  or  in  the  new  law  that 
inhibits  the  bona  fide  use  of  a  coin.  If,  however,  there  be  a  mu- 
tilation, for  the  purpose  of  defrauding  some  person,  the  statute 
is  so  broad  as  to  include  every  possible  method.  It  was  said  in 
United  States  vs.  Lissner,  12  Federal,  840,  that  where  one 
punched  a  hole  with  a  sharp  instrument  through  a  coin,  leaving 
all  the  silver  in  the  coin,  though  crowding  it  into  different  shape, 
he  committed  no  offense. 

Section  166  relates  to  the  debasement  of  the  coinage  by  officers 
of  the  mint,  and  is  a  practical  re-enactment  of  old  Section  150. 
Section  169  relates  to  counterfeiting,  etc.,  of  the  dies  for  coins  of 
the  United  States,  and  incorporates  all  the  features  of  the  Act 
shown  in  First  Supplement,  page  889. 

Section  170  denounced  the  counterfeiting  of  dies  for  foreign 
coins,  and  is  based  upon  the  Act  shown  in  the  First  Supplement, 
page  890. 

Section  171  is  an  incorporation  of  the  Act  shown  in  First  Sup- 
plement, page  890,  and  the  Act  of  the  Third  of  March,  1903,  page 
1223  of  the  32  St.  Large,  and  treats  of  the  making,  importing,  or 
having  in  possession,  tokens,  prints,  etc..  similar  to  United 
States  or  foreign  coins. 

§  97.  Counterfeit  Obligations,  etc.,  to  be  Forfeited. — By  the 
terms  of  Section  172,  which  reads  as  follows: 

"All  coimterfeits  of  any  obligation  or  other  security  of  the 
United  States  or  of  any  foreigTi  government,  and  all  material  or 
apparatus  fitted  or  intended  to  be  used,  or  that  shall  have  been 
used,  in  the  making  of  any  such  counterfeit  obligation  or  other 


142  COUNTER  E'EITING,   ETC. 

security  or  coins  hereinbefore  mentioned,  that  shall  be  found  in 
the  possession  of  any  person  without  authority  from  the  Sec- 
■  retary  of  the  Treasury  or  other  proper  officer  to  have  the  same, 
shall  be  taken  possession  of  by  any  authorized  agent  of  the  Treas- 
ury Department,  and  forfeited  to  the  United  States,  and  dis- 
posed of  in  any  manner  the  Secretary  of  the  Treasury 
may  direct.  Whoever  having  the  custody  or  control  of  any 
such  counterfeits,  material,  or  apparatus,  shall  fail  or  refuse  to 
surrender  possession  thereof  upon  request  by  any  such  author- 
Hzed  agent  of  the  Treasury  Department,  shall  be  fined  not  more 
than  one  hundred  dollars,  or  imprisoned  not  more  than  one  year, 
or  both," 

any  counterfeit  obligation,  security,  coin,  or  other  material,  is  to 
be  forfeited.  This  section  is  an  enlargement  of  theAct  shown  in 
the  First  Supplement,  page  890,  in  that  it  adds  a  penalty.  Who- 
ever, having  custody  of  the  material,  refuses  to  surrender,  upon 
request,  is  liable  to  one  himdred  dollars  fine,  or  imprisonment 
for  not  more  than  one  year,  or  both. 

§  9?.  Search  Warrant. — In  aid  of  the  above  statute,  and  par- 
ticularly for  the  suppression  of  all  sorts  of  counterfeiting,  we 
have  Section  173  of  the  New  Code,  in  the  following  w^ords : 

* '  The  several  judges  of  courts  established  under  the  laws  of  the 
United  States  and  United  States  commissioners  may,  upon  proper 
oath  or  affirmation,  within  their  respective  jurisdictions,  issue  a 
search  warrant  authorizing  any  marshal  of  the  United  States,  or 
any  other  person  specially  mentioned  in  such  warrant,  to  enter 
any  house,  store,  building,  boat,  or  other  place  named  in  such 
warrant,  in  which  there  shall  appear  probable  cause  for  believing 
that  the  manufacture  of  counterfeit  money,  or  the  concealment 
of  counterfeit  money,  or  the  manufacture  or  concealment  of 
counterfeit  obligations  or  coins  of  the  United  States  or  of  any 
foreign  government,  or  the  manufacture  or  concealment  of  dies, 
hubs,  molds,  plates,  or  other  things  fitted  or  intended  to  be  used 
for  the  manufacture  of  counterfeit  money,  coins,  or  obligations 
of  the  United  States  or  of  any  foreign  government,  or  of  any 
bank  doing  business  under  the  authority  of  the  United  States,  or 
of  any  State  or  Territory  thereof,  or  any  bank  doing  business 
under  the  authority  of  any  foreign  government,  or  of  any  politi- 
cal division  of  any  foreign  government,  is  being  carried  on  or 
practiced,  and  there  search  for  any  such  counterfeit  money, 
hoins,  dies,  hubs,  molds,  plates,  and  other  things,  and  for  any 
such  obligations,  and  if  any  such  be  found,  to  seize  and  secure 
the  same,  and  to  make  return  thereof  to  the  proper  authority; 


COUNTERFEITING,   ETC.  143 

and  all  such  counterfeit  money,  coins,  dies,  hubs,  molds,  plates, 
and  other  things,  and  all  such  counterfeit  obligations  so  seized 
shall  be  forfeited  to  the  United  States." 

The  only  difference  between  the  new  section  and  the  old  section 
as  shoMH  in  First  Supplement,  page  890,  is  the  leaving  out  of 
the  provision  that  a  search  warrant  may  be  served  or  acted  upon 
only  in  the  day-time.  Under  the  new  law,  officers  may  act  under 
the  search  warrant,  when  issued  as  therein  provided,  at  any  time, 
unless,  perchance,  the  Constitutional  prohibition  against  unrea- 
sonable searches  and  seizures  may  be  read  into  the  statute,  and  it 
doubtless  is. 


CHAPTER  V. 

OFFENSES  AGAINST  PUBLIC  JUSTICE. 

§  99.  Perjury:   5392—125. 

100.  Form  of  Oath  Immaterial. 

101.  Competent  Tribunal,  Officer,  Etc. 

102.  Illustrations  of  Successfully  Laid  Perjury. 

103.  "Wilfulness  and  Materiality. 

104.  Sufficiency  of  Indictment:  5396. 

105.  Proof  of. 

106.  Subornation  of  Perjury:  5393—126. 

107.  Stealing    or   Altering   Process,   Procuring   False    Bail,   Etc.:    5394 

—127. 

108.  Obstructing  Process  or  Assaulting  an  Officer:   5398 — 140. 

109.  Destroying  or  Stealing,  Etc.,  Public  Eecords:   5403 — 128. 

110.  Destroying  Eecords  by  Officer  in  Charge:   5408 — 129. 

111.  Forging  Signature  of  Judge,  Etc.:   5419 — 130. 

112.  Intimidation  or  Corruption  of  Witness,  or  Grand  or  Petit  Juror  or 

Officer:   5399  and  5404—135. 

113.  Conspiring  to  Intimidate  Party,  Witness,  or  Juror:   5406 — 136. 

114.  Attempt  to  Influence  Juror:   5405 — 137. 

115.  Allowing  Prisoner  to  Escape:   5409 — 138. 

116.  Kescuing,    Etc.,    Prisoner;    Concealing,    Etc.,    Prisoner    for    Whom 

Warrant  Has  Been  Issued. 

117.  Kescuing  at  Execution;   Kescue  of  Prisoner  and  Eescue  of  Body 

of  Executed  Offender:   5400,  5401,  and  5402—142,  143,  and  144. 

118.  Extortion  by  Internal  Revenue  Informers:   5484 — 145. 

119.  Misprison  of  Felony:  5390—146. 

120.  Bribery. 

121.  Bribery  of  a  Judge  or  Judicial  Officer:   5449 — 131. 

122.  Judge  or  Judicial  Officer  Accepting  Bribe:   5499 — 132. 

123.  Juror,   Eeferee,  Master,   United  States   Commissioner,   or  Judicial 

Officer,  Etc.,  Accepting  Bribe:  New  Code,  133. 

124.  Witness  Accepting  Bribe:   New  Code,  134. 

125.  Members  of  Congress  Accepting  Bribe,  Etc. 

§  99.  Perjury. — Section  125  of  the  New  Code,  which  contains 
5392  of  the  old  statutes,  without  chan^ng  the  same,  reads  as 
follows : 

"Whoever,  having  taken  an  oath  before  a  competent  tribunal, 

144 


OFFENSES   AGAINST   PUBLIC   JUSTICE  145 

officer,  or  person,  in  any  ease  in  which  a  law  of  the  United 
States  authorizes  an  oath  to  be  administered,  that  he  will  testify, 
declare,  depose,  or  certify  truly,  or  that  any  written  testimony, 
declaration,  deposition,  or  certificate  by  him  subscribed,  is  true, 
shall  wilfully  and  contrary  to  such  oath  state  or  subscribe  any 
material  matter  which  he  does  not  believe  to  be  true,  is  guilty 
of  perjury,  and  shall  be  fined  not  more  than  two  thousand  dol- 
lars, and  imprisoned  not  more  than  five  years." 

Common  law  perjury  was  practically  the  same  as  this  statutory 
offense.  Perjury,  at  Common  Law,  was  the  wilful  and  corrupt 
giving,  upon  a  lawful  oath,  or  in  any  form  allowed  by  law  to  be 
substituted  for  an  oath  in  a  judicial  proceeding  or  course  of  jus- 
tice, of  false  testimony  material  to  the  issue  or  matter  of  inquiry. 

§  100.  Form  of  Oath  Immaterial. — An  oath,  as  understood  in 
prosecutions  under  this  statute,  is  one's  solemn  asseveration,  ut- 
tered in  an  appeal  to  the  Supreme  Being,  under  the  sanction  of 
his  religion,  that  a  thing  stated  or  to  be  stated  by  him  is  true, 
made  to  a  civil  officer  authorized  to  administer  or  receive  it. 
It  must,  therefore,  be  a  lawful  one;  that  is,  it  must  be  legally 
administered,  by  an  officer  duly  authorized,  but  the  form  is  im- 
material, provided  the  witness  professes  it  to  be  binding  on  him. 
When  a  witness  comes  to  be  sworn,  it  is  to  be  assumed  that  he  has 
settled  with  himself  in  what  way  he  shall  be  sworn,  and  he  should 
make  it  Imown  to  the  Court,  and  should  be  sworn  with  uplifted 
hand,  or  by  any  other  unusual  mode,  though  not  conscientiously 
opposed  to  swearing  on  the  Gospel,  and  depose  falsely,  he  sub- 
jects himself  to  prosecution  for  perjury.  See  Clark,  Bishop,  and 
Wharton  on  Perjury.  In  United  States  vs.  Mallard,  40  Federal, 
151,  the  Court  held  that  the  affiant,  being  unable  to  write,  the 
Commissioner  reduced  his  statement  to  writing,  ending  with  the 
jurat,  ''Sworn  to  before  me,"  and  said  to  him,  "If  you  swear 
to  this  statement,  put  your  mark  here."  The  affiant  put  his 
mark.  This  was  held  to  be  an  oath.  In  United  States  vs.  Baer, 
6  Federal,  42.  the  evidence  of  a  notary  public  showed  that  he 
had  used  a  form  substantially  as  that  required  by  the  local  state 
statute,  in  swearing  a  witness,  and  the  Court  held  that  the  oath 
was  sufficient  to  sustain  a  verdict  of  guilty  of  perjury. 

§  101.  Competent  Tribunal,  Officers,  Etc, — Having  been  satis- 
fied that  the  person  took  an  oath  in  some  form  recognized  as  re- 


146  OFFENSES  AGAINST   PUBLIC   JUSTICE 

ligiously  binding,  the  next  question  under  the  statute  is  whether 
such  an  oath  was  taken  before  a  competent  tribunal,  officer,  or 
person,  in  a  case  in  w^hich  a  law  of  the  United  States  authorized 
an  oath  to  be  administered.  Under  the  Common  Law,  the  false 
testimony  must  be  in  a  judicial  proceeding,  or  in  the  course  of 
justice ;  but  the  statute  under  consideration  includes  much  more 
than  the  Court-house  testimony  and  oath.  It  does  not,  however, 
include  every  affidavit  or  declaration.  In  United  States  vs.  Bab- 
cock,  4  McLean,  113,  it  was  held  that  an  oath  administered  to  a 
witness  by  the  Clerk  of  the  Circuit  Court,  as  to  the  distance  from 
the  Court  to  his  home,  taken  by  the  witness  to  support  his  claim 
for  mileage,  was  not  taken  imder  any  law  of  the  LTnited  States, 
and.  therefore,  a  prosecution  for  perjury  could  not  be  sustained. 
In  United  States  vs.  Maid,  116  Federal,  650,  the  Court  held  that 
an  affidavit  of  the  non-mineral  character  of  the  land,  made  in 
support  of  a  homestead  entry,  although  a  regulation  of  the  land 
office  required  such  an  affidavit  to  be  made  in  certain  states, 
since  it  was  not  required  by  Revised  Statutes  2290.  which  pre- 
scribes the  contents  of  a  homestead  affidavit,  would  not  sustain 
a  prosecution  for  perjury. 

In  United  States  vs.  Howard,  37  Federal,  the  facts  showed  that 
the  defendant  entered  a  homestead  claim,  and  on  application  to 
commute  his  entry  to  a  cash  entry,  he  made  affidavit  that  he  had 
actually  moved  on  the  land  in  December,  etc.,  taking  his  oath 
before  a  Judge  of  Probate.  The  statute  did  not  authorize  a 
Judge  of  Probate  to  administer  such  an  oath ;  and  the  Court, 
upon  demurrer,  held  the  indictment  to  be  fatally  defective,  upon 
the  proposition  that  the  defendant  had  not  taken  his  oath  before 
some  competent  tribunal,  officer,  or  person.  In  United  States  vs. 
Manion,  44  Federal,  page  800,  the  Court  held  that  perjury  can- 
not be  assigned  upon  affidavit  made  before  a  notary  public,  by  a 
person  in  support  of  his  claim  to  a  preference  right  to  purchase 
coal  land  under  certain  sections  of  the  Revised  Statutes,  because 
notaries  public  are  not  authorized  by  any  law  of  the  United 
States  to  administer  oaths  to  affidavits  required  by  the  rules  and 
regulations  of  the  general  land  office,  the  regulations  showing  that 
persons  desiring  to  make  affidavits  for  coal  lands  must  do  so  be- 
fore a  Register  or  Receiver  of  the  Land  office.     Judge  Paul,  in 


OFFENSES  AGAINST   PUBLIC  JUSTICE  147 

United  States  vs.  Law,  50  Federal,  915,  held  that  Section  778  of 
the  Revised  Statutes,  which  authorized  notaries  public  to  ad- 
minister oaths  in  all  eases  in  which  Justices  of  the  Peace  had 
power  to  administer  them,  gave  no  power  to  administer  an  oath 
in  an  investigation  by  the  Post-office  Department,  as  to  the  al- 
leged loss  of  a  registered  letter,  for  there  was  no  statute  which 
gave  Justices  such  power,  and,  therefore,  no  indictment  for  per- 
jury could  be  based  upon  false  statements  in  an  affidavit  made 
before  a  notary  public  in  such  an  investigation.  Before  the  Act 
of  February  26,  1881,  a  notary  public  had  no  authority  to  ad- 
minister oaths  to  officers  of  national  banks  for  the  verification  of 
their  reports  to  the  Comptroller,  and  false  statements  in  such  re- 
ports, where  verification  was  had  before  a  notary  public,  would 
not  have  sustained  prosecution  for  perjury.  United  States  vs. 
Curtis,  107  U.  S.,  671.  An  oath  taken  before  a  Commissioner 
of  the  Circuit  Court  in  taking  bail,  where  the  laws  of  the  State 
do  not  authorize  the  State  officers  mentioned  in  the  statute  to 
administer  oaths  for  similar  purposes,  will  not  sustain  a  pros- 
ecution for  perjury.  United  States  vs.  Garcelon,  82  Federal,  611. 
Under  the  authority  of  United  States  vs.  Lamson,  165  Federal, 
page  80,  an  affidavit  under  Section  6  of  the  Oleomargarine  Act, 
which  requires  wholesale  dealers  to  keep  such  books  and  render 
such  returns  as  the  Commissioner  of  Internal  Eevenue  may,  by 
regulation,  require,  under  prescribed  penalties  for  its  violation, 
and  the  regulation  thereunder  made  requiring  an  oath  to  the  re- 
turns, does  not  have  the  force  of  law  in  such  sense  that  a  false 
oath  to  a  return  subjects  the  maker  to  prosecution  for  perjurv^, 
and  an  indictment  so  laid  was  quashed  by  Judge  Bro^Mi. 

§  102.  In  the  following  cases,  perjury  has  been  successfully 
laid: 

False  oath  by  a  director  of  a  national  bank,  before  a  notary 
public.    United  States  vs.  Neal,  14  Federal,  767. 

Affidavit  of  an  applicant  for  an  entry  to  land,  made  before  the 
Clerk  of  the  County  Court,  United  States  vs.  Hearing,  26  Fed- 
eral, 744. 

False  oath  under  the  Timber  Culture  Act,  which  authorized  the 
oath  to  be  administered  in  the  District  where  the  land  is  situated. 


148  OFFENSES   AGAINST   PUBLIC   JUSTICE 

United  States  vs.  Madison,  21  Federal,  628;  United  States  vs. 
Shinn,  14  Federal,  447. 

False  swearing  in  an  affidavit  made  before  a  Justice  of  the 
Peace,  in  conformity  to  a  regulation  of  the  Secretary  of  the 
Treasury.    United  States  vs.  Bailey,  9  Peters,  238. 

Also  where  oath  is  administered  by  state  officer  authorized  by 
the  usage  of  the  Treasury  Department,  when  Congress  required 
an  oath  to  be  made.  United  States  vs.  Winchester,  2  McLean, 
135. 

An  affidavit  made  before  a  Justice  of  the  Peace,  to  support  a 
pension  claim.    United  States  vs.  Boggs,  31  Federal,  337. 

An  affidavit  made  before  a  notary  public,  in  support  of  an  ap- 
plication for  pension.  Noah  vs.  United  States,  128  Federal,  270; 
also  Williamson  vs.  United  States,  U.  S.  Supreme  Court,  October 
Term,  1907. 

Officer  of  the  General  Land  Office  of  the  United  States,  hear- 
ing a  contest  with  respect  to  a  homestead  entry,  in  accordance 
with  the  rules  promulgated  by  the  mxerior  Department,  con- 
stitutes a  competent  tribunal.  Caha  vs.  United  States,  152  U. 
S.,  211. 

A  verification  of  a  cashier  of  a  national  bank,  of  a  report  of  the 
condition  of  the  bank.  United  States  vs.  Bartow,  10  Federal, 
873. 

Judge  Speer,  in  United  States  vs.  Hardison,  135  Federal,  419, 
held  that  where  a  defendant  swore  falsely  as  to  his  qualifica- 
tions to  become  a  surety  on  a  distiller's  bond,  before  a  Deputy 
Internal  Revenue  Collector,  he  was  properly  charged  with  per- 
jury, even  though  the  oath  thereto  was  taken  before  a  United 
States  Commissioner. 

In  United  States  vs.  Patterson,  172  Federal,  241,  Judge  Wool- 
verton  held  that  a  wilful  false  statement  in  an  oath  to  an  applica- 
tion for  patent,  made  as  required  by  Section  4892  of  the  Revised 
Statutes,  that  the  applicant  verily  believes  himself  to  be  the 
original,  first,  and  sole  inventor  of  the  device  for  which  the  pat- 
ent is  sought,  is  of  a  material  matter,  and  constitutes  perjury. 

In  United  States  vs.  Voltz,  14  Blatehf.,  page  15,  the  Court 
held  that  the  qualification  of  a  surety  to  a  bail  bond  is  a  case 


OFFENSES   AGAINST    PUBLIC   JUSTICE  149 

within  the  meaning  of  the  perjury  section,  and  upon  which  per- 
jury can  be  based. 

In  Brace  vs.  United  States,  149  Federal,  871,  a  land  affidavit 
is  sufficient,  as  the  foundation  for  a  perjury  prosecution. 

Naturalization  affidavits,  in  Schmidt  vs.  U.  S..,  133  F.,  257, 
and  U.  S.  vs.  Dupont,  176  F.,  823. 

§  103.  Materiality  and  Wilfulness. — The  indictment  must  aver 
unmistakably  the  materiality  of  the  oath,  and  the  wilfulness  of 
the  falsification.  U.  S.  vs.  Ammerman,  176  F.,  636.  A  false 
statement,  declaration,  or  testimony,  upon  a  collateral  issue,  will 
not  sustain  perjury,  and  neither  will  mistake  or  innocent  false- 
ness make  one  guilty  of  the  offense. 

It  is  sufficient  to  charge  generally  that  the  false  testimony  was 
in  respect  to  a  matter  material  to  the  issue,  without  setting  out 
the  facts  from  which  such  materiality  appears.  If,  however, 
the  facts  are  also  stated,  and  it  clearly  appears  that  the  testimony 
was  not  material,  a  formal  allegation  of  materiality  will  not  save 
the  indictment.  United  States  vs.  Pettus,  84  Federel,  791.  So, 
also,  where  in  an  indictment  for  perjury  it  is  apparent  from  the 
averments  that  the  evidence  which  is  charged  to  be  false  was 
material,  it  is  not  essential  to  state  the  legal  conclusion  by  alleg- 
ing that  the  evidence  was  material.  The  Court  being  apprised 
of  the  facts,  may  draw  the  conclusion  without  the  allegation. 
So,  also,  where  the  averments  as  to  the  materiality  of  what  is 
alleged  to  have  been  sworn  falsely  are  defective,  the  indictment 
is,  nevertheless,  good,  if  such  materiality  sufficiently  appears  on 
its  face.    30  Cyc,  1435. 

§  104.  Sufficiency  of  Indictment. — As  before  noticed,  great  par- 
ticularity was  required  at  Common  Law ;  and  while  proceedings 
of  the  Federal  Courts  are  assimilated  to  the  Common  Law  forms, 
all  Federal  crimes  are  statutory,  and  the  Common  Law  rules  in 
passing  upon  the  sufficiency  of  a  perjury  indictment  in  the  Fed- 
eral Court  would  necessitate  the  same  strictness  with  reference 
to  its  proper  alleging  as  did  the  Common  Law,  but  Congress  pro- 
vided a  saving  statute  in  Section  5396  of  the  old  statutes,  which 
is  still  the  law,  and  reads  as  follows : 

"In  every  presentment  or  indictment  prosecuted  against  any 
person  for  perjury,  it  shall  be  sufficient  to  set  forth  the  substance 


150  0FFEN8ES   AGAINST    PUBLIC   JUSTICE 

of  the  offense  charged  upon  the  defendant,  and  by  what  court, 
and  before  whom  the  oath  was  taken,  averring  such  court  or  per- 
son to  have  competent  authority  to  administer  the  same,  together 
with  the  proper  averment  to  falsify  the  matter  wherein  the  per- 
jury is  assigned,  without  setting  forth  the  bill,  answer,  informa- 
tion, indictment,  declaration,  or  any  part  of  any  record  or  pro- 
ceeding, either  in  law  or  equity,  or  any  affidavit,  deposition,  or 
certificate,  other  than  as  hereinbefore  stated,  and  without  setting 
forth  the  commission  or  authority  of  the  court  or  person  before 
whom  the  perjury  was  committed." 

The  ordinary  rules  of  criminal  pleading,  and  the  above  statute 
being  clearly  in  mind,  all  that  is  necessary  under  the  Federal 
statute  is  to  draw  the  bill  in  such  plain  and  intelligible  terms, 
and  with  such  particularity  as  to  apprise  the  accused  with  rea- 
sonable certainty  of  the  offense  for  which  he  is  sought  to  be  pun- 
ished, and  state  the  substance  of  the  controversy  upon  which  the 
false  oath  was  taken,  specify  the  Court  or  officer  by  whom  it  was 
administered,  aver  or  show  that  such  Court  or  officer  had  author- 
ity to  administer  an  oath,  allege  the  falsity  of  the  oath,  and  as- 
sign perjury  thereon.  Noah  vs.  U.  S.,  128  Fed.,  270;  U.  S.  vs. 
Cuddy,  39  Fed.,  696;  U.  S.  vs.  Walsh,  22  Fed.,  622;  Markham 
vs.  U.  S.,  160  U.  S.,  319,  40  Law  Ed.,  441,  30  Cyc,  1425.  This 
section,  demands  that  the  oath  must  have  been  wilful,  and  an 
allegation  that  it  was  corruptly  taken  is  not  sufficient.  The  in- 
dictment must  allege  that  the  oath  was  wilfully  taken.  United 
States  vs.  Edwards,  43  Fed.,  67;  IJ.  S.  vs.  Lake,  129  Federal, 
499 ;  United  States  vs.  Hearing,  26  Federal,  744. 

Wilfullness  and  a  corrupt  intent  being  essential  elements  of 
the  crime  of  perjury,  evidence  to  prove  such  issues  goes  to  the 
very  substance  of  the  offense,  and  is,  therefore,  admissible.  All 
of  the  record,  including  the  judgment  of  the  case  in  which  the 
perjury  is  alleged  to  have  been  committed,  is,  therefore,  admis- 
sible upon  the  question  of  motive.  If  perjury  were  committed 
by  one  in  his  own  defense  in  the  trial  of  a  criminal  ease,  the  in- 
dictment and  judgment  would  be  admissible,  not  for  the  pur- 
pose of  showing  that  the  defendant  had  been  convicted  of  an 
offense,  but  for  the  purpose  of  showing  his  motive  to  testify  un- 
truly in  the  original  case ;  but  it  is  thought  that  the  Court  should 
limit  the  consideration  of  the  judgment  by  proper  instructions, 


OFFENSES  AGAINST   PUBLIC   JUSTICE  151 

to  the  consideration  of  motive  alone,  or  inducement,  as  some  au- 
thorities put  it.  A  judgment  so  introduced  and  so  restricted  by 
the  Court,  is  material  and  competent.  In  United  States  vs.  Berk- 
hardt,  31  Federal,  141,  the  trial  Court  set  aside  a  judgment  of 
conviction  of  perjury,  because  he  had  admitted  the  judgment  in 
the  original  case  for  all  purposes,  and  without  limiting  it.  Whar- 
ton, Criminal  Evidence,  Section  602-a.  The  same  rights  that  ex- 
ist in  favor  of  the  prosecution  to  show  the  corrupt  motive  and 
wilfulness  are  equally  pertinent  for  the  defense,  and  it  is  at  all 
times  admissible  and  competent  for  him  to  show  the  lack  of 
corrupt  motive,  or  to  rebut  the  existence  of  such  a  motive. 

§  105.  Proof. — Perjury  must  be  proven  by  two  witnesses,  or 
by  one  witness  and  corroborating  circumstances,  and  the  jury 
should  be  informed,  in  some  part  of  the  instructions,  that  before 
they  can  convict,  the  fact  that  the  oath  was  false  must  be  shown 
to  their  satisfaction  in  such  way ;  and  it  is  thought  in  this  con- 
nection that  the  instructions  must  also  somewhere  inform  the 
jury  what  is  meant  by  "corroborated."  State  vs.  Hunter,  181 
Missouri,  316;  80  S.  W.,  915;  People  vs.  Wells,  103  Calif.,  631; 
U.  S.  vs.  Hall.  44  Federal,  864. 

§  106.  Subornation  of  Perjury. — Section  126  of  the  New  Code 
reads  as  follows: 

"Whoever  shall  procure  another  to  commit  any  perjury  is 
guilty  of  subornation  of  perjury,  and  pimishable  as  in  the  pre- 
ceding section  prescribed," 

which  are  the  substantial  words  of  old  Section  5393.  An  in- 
dictment is  sufficient  which  alleges  that  the  witness  knew  the 
testimony  to  be  false  and  that  the  defendant,  knowing  it  was 
perjury,  procured  her  to  conunit  it.  Babcock  vs.  United  States, 
34  Federal,  873;  United  States  vs.  Thompson,  81  Federal,  331. 
In  United  States  vs.  Dennee,  3  Woods,  (U.  S.)  39,  the  Court  held 
that  an  indictment  must  allege  that  the  defendant  knew  that  the 
testimony  which  he  instigated  the  witness  to  give  was  false,  and 
the  defendant  knew  that  the  witness  knew  that  the  testimony  she 
was  instigated  to  give  was  false.  The  same  particularity  and 
accurateness  is  required  in  an  indictment  under  this  section,  and 
the  same  general  law  relates  thereto,  as  under  that  for  perjury. 
The  following  cases  may  be  interesting: 


152  OFFENSES   AGAINST    PUBLIC   JUSTICE 

U.  S.  VS.  Evans,  19  Fed.,  912. 

U.  S.  vs.  Howard,  132  Fed.,  325. 

U.  S.  vs.  Cobban,  134  Fed.,  290. 

U.  S.  vs.  Brace,  144  Fed.,  869. 

U.  S.  vs.  Boren,  144  Fed.,  801 ;  30  Cyc,  at  page  1440,  gives  the 
following  elements  of  an  indictment  for  subornation,  with  sup- 
porting authorities,  which  it  is  thought  is  the  law : 

"An  indictment  for  subornation  of  perjury  must  state  all  the 
essential  elements  constituting  the  crime  of  perjury,  as  well  as 
of  subornation  of  perjury.  It  must  set  forth  the  nature  of  the 
proceeding  in  which  the  alleged  perjury  was  committed;  the 
court  or  officer  in  which,  or  before  whom,  the  false  oath  was 
taken ;  that  the  witness  was  duly  sworn ;  that  the  testimony  was 
material,  and  false ;  that  defendant  knowingly  and  wilfully  pro- 
cured another  to  swear  falsely ;  that  the  party  did  knowingly 
swear  falsely ;  that  defendant  knew  that  the  testimony  of  the 
witness  would  be  false ;  and  that  he  knew  that  the  witness  knew 
said  testimony  was  false." 

A  charge  of  subornation  of  perjury  may  be  joined  with  a 
charge  of  perjury  in  the  same  indictment,  and  the  perjurer  and 
the  suborner  may  both  be  included  in  it.  Commonwealth  vs. 
Devine,  155  Mass.,  224;  29  N.  E.,  515. 

§  107.  Stealing  or  Altering  Process;  Procuring  False  Bail,  Etc. — 
Old  Section  5394  is  practically  re-enacted  in  Section  127  of  the 
New  Code,  except  that  under  the  old  statute  the  Court  was  not 
authorized  to  impose  both  penalties  of  fine  and  imprisonment. 
The  new  section  reads  as  follows : 

"Whoever  shall  feloniously  steal,  take  away,  alter,  falsify,  or 
otherwise  avoid  any  record,  writ,  process,  or  other  proceeding, 
in  any  court  of  the  United  States,  by  means  whereof  any  judg- 
ment is  reversed,  made  void,  or  does  not  take  effect;  or  whoever 
shall  acknowledge,  or  procure  to  be  acknowledged,  in  any  such 
coiu-t,  any  recognizance,  bail,  or  judgment,  in  the  name  of  any 
other  person  not  privy  or  consenting  to  the  same,  shall  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  seven  years,  or  both ;  but  this  provision  shall  not  extend  to 
the  acknowledgment  of  any  judgment  by  an  attorney,  duly  ad- 
mitted, for  any  person  against  whom  such  judgment  is  had  or 
given. ' ' 

Most  of  the  annotators  cite  United  States  vs.   Crecilius,  34 


OFFENSES  AGAINST   PUBLIC   JUSTICE  153 

Federal,  page  30;  Barber  vs.  United  States,  35  Federal,  886,  and 
5  Attorney  General's  Opinion,  523. 

The  two  first  cases  contain  practically  no  assistance,  by  decis- 
ion or  argument,  for  the  construction  of  the  statute.  In  one  of 
them  the  word  "alter"  is  treated  at  some  inconsiderate  length. 
Anderson's  Dictionary  of  Law  defines  the  word  alter  to  mean 
"to  make  a  thing  different  from  what  it  was."  The  definition 
in  the  Century  Dictionary  is  practically  the  same,  and  is  in  the 
following  words :  "  to  become  different  in  some  respect ;  to  vary ; 
to  change. ' ' 

The  statute,  of  course,  does  not  make  an  innocent,  thoughtless, 
or  mistaken  alteration  or  falsification  an  offense.  The  charge 
must  include  an  unlawful  and  felonious  alteration  or  falsifi- 
cation. 

The  statute  also  includes  the  acknowledgment  of  any  recog- 
nizance or  bail  or  judgment  by  one  in  the  name  of  another  with- 
out authority. 

§  108.  Obstructing  Process,  or  Assaulting  an  Officer,  Etc. — In 
the  New  Code  Section  140  takes  the  place  of  Section  5398  in  the 
1878  statutes.    The  new  section,  which  reads  as  follows: 

"Whoever  shall  knowingly  and  wilfully  obstruct,  resist,  or 
oppose  any  officer  of  the  United  States,  or  other  person  duly  au- 
thorized, in  serving,  or  attempting  to  serve  or  execute,  any 
mesne  process  or  warrant,  or  any  rule  or  order,  or  any  other 
legal  or  judicial  writ  or  process  of  any  court  of  the  United 
States,  or  United  States  Commissioner,  or  shall  assault,  beat,  or 
wound  any  officer  or  other  person  duly  authorized,  knowing  him 
to  be  such  officer,  or  other  person  so  duly  authorized,  in  serving 
or  executing  any  such  writ,  rule,  order,  process,  warrant,  or 
other  legal  or  judicial  w^it  or  process,  shall  be  fined  not  more 
than  three  hundred  dollars,  and  imprisoned  not  more  than  one 
year," 

contains  some  interpolated  phrases  that  seem  to  strengthen  and 
broaden  the  old  statute.  In  other  words,  under  the  new  statute, 
the  words  ' '  or  other  person  duly  authorized' '  would  protect  any 
person  who  happened  to  be  a  messenger  conveying  any  Court 
process,  though  such  person  would  not  be  an  officer  of  the  United 
States  within  the  meaning  of  the  decisions,  which  requires  a  per- 
son to  have  been  nominated  and  commissioned  by  the  Executive 


154  OFFENSES   AGAINST    PT^BLTC   JUSTICE 

Department.  So  also,  the  words  ''or  any  other  legal  or  judicial 
writ  or  process"  are  placed  in  the  new  statute;  and  to  meet  that 
line  of  decisions  which  has  held  in  contempt  proceedings  that  a 
United  States  Commissioner  does  not  hold  any  United  States 
Court,  and  is,  therefore,  not  a  Court,  or  Judge,  the  statute  spe- 
cially includes  the  words,  "or  United  States  Commissioner." 

The  new  statute  also  includes  the  words  "knowing  him  to  be 
such  officer  or  other  person  so  duly  authorized, ' '  which  is  but  an 
enactment  of  what  the  best  authorities  had  already  determined 
was  necessary  before  one  could  be  convicted  for  an  alleged  viola- 
tion of  the  Section.  Necessarily,  one  who,  by  mistake  or  without 
knowledge,  obstructed  process  or  an  officer,  should  not  be  pros- 
ecuted. 

In  United  States  vs.  Terry,  41  Federal,  771,  Judge  Ross  held 
that  the  Section  related  to  an  oral  order  of  a  Court,  to  remove 
from  a  Court  room  a  prisoner  who  was  disturbing  the  proceedings 
of  a  Court.  In  that  case,  it  was  conceded  in  argument,  and  is 
recognized  by  the  Court  in  his  opinion,  that  at  the  time  the  de- 
fendant resisted  the  marshal  who  attempted  to  eject  her  from  the 
court  room  under  the  order  of  the  Judge,  that  such  order  was 
oral,  and  had  not  been  entered  of  record.  The  distinction  is 
drawn  in  the  following  words : 

"Undoubtedly,  in  judicial  proceedings,  an  'order'  as  distin- 
guished from  a  'judgment'  is  often  defined  as  one  reduced  to 
writing  and  entered  in  the  records  of  the  Court,  and  such  is  the 
purport  of  many  of  the  cases  referred  to  by  counsel  for  the  de- 
fendant, but  this  is  by  no  means  saying  that  such  only  is  an 
order.  There  must,  in  the  nature  of  things,  be  an  order  of  a 
Court  made  before  it  is,  or  can  be,  written  out  in  the  records  of 
the  Court  by  the  Clerk.  When  written  out,  the  writing  becomes 
a  record  of  the  order,  and  is  evidence  of  it.  Orders  are  almost 
daily  given  to  the  Marshal  concerning  matters  to  be  performed 
in  the  presence  of  the  Court,  and  they  are  as  constantly  executed 
before  being  written  out.  Indeed,  many  of  them  are  never  re- 
duced to  writing  at  all.  Yet,  there  can  be  no  doubt  of  their  valid- 
ity. The  language  of  the  statute  in  question  is  broad  enough  to 
include  all  valid  oral  orders.  The  natural  ordinary  meaning  of 
the  word  includes  written,  as  well  as  unwritten  orders,  and  there 
is  no  reason  in  the  policy  of  the  law  or  in  the  nature  of  things, 
for  excluding  unwritten  orders.  Indeed,  the  contrary  is  true. 
There  is  just  as  much  reason  and  necessity  for  making  it  an  of- 


OFFENSES  AGAINST   PUBLIC   JUSTICE  155 

fense  to  resist  the  execution  of  a  lawful  unwritten  order,  brought 
distinctly  and  authoritatively  to  the  notice  of  the  offending 
party,  as  for  making  it  an  offense  to  resist  the  execution  of  one 
in  writing. ' '    United  States  vs.  Terry,  41  Federal,  773. 

The  essential  elements  of  a  charge  under  this  section  are  three : 
first,  the  issuance  of  a  legal  process,  warrant,  writ,  rule,  or  order, 
by  a  Court  of  the  United  States  or  a  United  States  Commission- 
er; second,  that  such  legal  process,  warrant,  writ,  rule,  or  order, 
after  the  same  was  issued,  was  in  the  hands  of  some  officer  of  the 
United  States,  or  other  person  duly  authorized,  for  service ;  and, 
third,  that  such  legal  process,  warrant,  writ,  rule,  or  order  was 
knowingly  and  wilfully  obstructed  or  interfered  with.  United 
States  vs.  Tinklepaugh,  3  Blatchf.,  425.  If  the  Tinklepaugh  case 
seems  in  a  measure  to  conflict  with  the  Terry  case,  reason  and 
public  justice  would  seem  to  demand  that  the  Terry  case  be  the 
ranking  authority. 

It  must  be  borne  in  mind  that  it  is  not  at  all  necessary  that 
actual  force  be  used  in  obstructing.  Passive  force,  such  as  the 
congregation  of  a  large  number  of  individuals,  knowing^  and 
determinedly,  in  the  way  of  the  officer  who  is  attempting  to  serve 
the  writ  or  process,  would  be  within  the  decisions,  and  within 
reason,  an  obstruction  which  would  come  within  the  statute. 
Such  was  the  construction  used  by  the  Court  in  charging  a  grand 
jury  in  2  Curtis,  637;  30  Fed.  Cases,  No.  18250.  Obstruction 
must,  therejfore,  under  the  authorities,  include  not  only  resistance 
but  all  impediments  or  opposition  or  obstacles,  as  outlined  in  the 
case  of  the  United  States  vs.  ]\IcDonald,  8  Biss.,  439 ;  26  Federal 
Cases,  No.  15667.  The  lexicographers,  in  treating  the  word  "ob- 
struct," determine  it  to  mean  "to  impede  or  retard  action;  to 
hinder;  to  render  passage  difficult  or  impossible;  to  pile  up 
against."  The  ordinary  meaning  of  the  word,  therefore,  has  been 
accepted  in  its  lawful  interpretation,  when  used  in  the  statute 
under  discussion.  The  officer  is  not  obliged  to  risk  his  life,  or 
expose  himself  to  personal  violence.  Threats  by  a  person  in  pos- 
session is  a  violation,  as  has  been  determined  in  United  States  vs. 
Lowry,  2  Wash..  169;  26  Federal  Cases  No.  15636;  U.  S.  vs. 
Smith,  1  Dill.,  212;  27  Federal  Cases  No.  16333.  If  one  in  pos- 
session of  property  opposes  and  obstructs  the  execution  of  a 


156  OFFENSES  AGAINST   PUBLIC   JUSTICE 

writ  of  possession  by  refusing  to  yield  possession,  and  by  threats 
of  violence,  he  has  committed  an  offense  against  this  statute. 
United  States  vs.  Lowry,  2  Wash.,  169;  26  Fed.  Cases,  No.  15636. 

Under  this  statute,  a  state  jailer  who  holds  Federal  prisoners 
by  commitments  from  United  States  Courts  under  the  statute  of 
a  State,  is  protected,  and  a  forcible  release  of  a  prisoner  in  his 
hands  would  be  an  offense  against  this  statute,  as  well  as  the 
statute  for  rescuing  a  prisoner,  which  is  new  Section  143  and  old 
Section  5401.  See  in  this  connection,  Matthews  vs.  United 
States  32  Court  of  Claims,  123.  By  following  the  cases  of  Blake 
vs.  United  States,  71  Federal,  286;  United  States  vs.  Mullin,  71 
Federal,  682 ;  and  United  States  vs.  Cover,  46  Fed.,  284,  in  con- 
struing an  indictment  under  this  section,  there  can  be  no  diffi- 
culty at  arriving  at  its  lawful  essentials  and  ingredients.  The  al- 
legation of  knowledge  can  be  included  generally,  it  is  thought,  in 
the  words  knowingly  and  wilfully  in  the  first  part  of  the  bill, 
for  they  will,  therefore,  be  construed  to  apply  to  each  of  the 
necessary  averments  of  substance,  though  it  may  be  considered 
the  best  pleading,  and  surely  pleading  that  leaves  no  room  for 
doubt,  if  the  allegation  of  knowledge  is  repeated  in  the  body  of 
the  bill,  with  reference  to  the  process  and  the  person  handling 
the  same.  In  other  words,  in  addition  to  the  general  words 
knowingly  and  wilfully  at  the  first  part  of  the  indictment,  let 
the  pleading  show  that  the  person  charged  knew  that  the  person 
attempting  to  serve  the  writ  or  order  was  an  authorized  person, 
and  really  had  a  writ  or  order  from  a  competent  tribunal  or 
Court,  as  the  case  may  be.  In  the  case  of  United  States  vs.  Mc- 
Donald, 8  Biss.,  page  439,  the  Court  held  that  the  custodian  of 
property  for  the  Marshal  was  an  officer  within  the  meaning  of 
the  old  Section.  In  United  States  vs.  Martin,  17  Federal,  150, 
the  Court  held  under  a  prosecution  for  a  violation  of  the  old 
section  that  a  Deputy  Marshal  was  an  officer  of  the  United  States, 
within  the  meaning  of  the  section,  as  is  also  the  keeper  of  a  State 
jail,  and  process  issued  by  a  Commissioner  of  the  Circuit  Court, 
under  Section  1014  of  the  Revised  Statutes,  in  causing  the  arrest 
or  imprisonment  of  a  person,  was  entitled  to  the  protection  of 
the  provisions  of  the  section. 

The  discussion  of  the  Judge  in  the  13  Federal,  United  States 


OFFENSES   AGAINST   PUBLIC   JUSTICE  157 

VS.  Huff,  at  page  639,  of  the  words  ''disobedience"  and  "resist- 
ance" under  a  prosecution  for  violations  of  Sections  5359  and 
5360,  will  be  found  to  be  in  line  with  the  views  heretofore  ex- 
pressed with  reference  to  there  being  no  distinction  between  the 
definitions  of  the  words  as  found  in  the  dictionaries  and  as  found 
in  the  decisions  of  the  Courts. 

Of  course,  there  is  no  offense  when  one  resists  unauthorized  ar- 
rest. A  reasoning  under  a  case  of  this  sort  will  be  found  in  the 
case  of  the  United  States  vs.  Mundell,  1  Hughes,  415 ;  27  Federal 
Cases,  No.  15834. 

Blackstone,  in  his  division  of  crime,  made  five  heads:  first,  of- 
fenses against  God  and  religion ;  second,  offenses  against  the  law 
of  nations;  third,  offenses  against  the  king  and  Government; 
fourth,  offenses  against  the  commonwealth,  as  against  public  jus- 
tice, public  peace,  public  trade,  public  health,  public  economy; 
fifth,  offenses  against  individuals, — that  is,  against  their  person^, 
their  habitations,  and  their  property. 

Of  course,  such  division  is  arbitrary,  but  serves  to  furnish  a 
plan  for  the  student  and  the  legislator.  The  offense  we  are  con- 
sidering comes  under  the  fourth  head,  and  at  Common  Law  in- 
eluded  many  things,  such  as  resisting  arrest  or  process,  obstruct- 
ing officers,  rescue,  escapes,  preventing  attendance,  briberies,  per- 
juries, and  contempts,  etc.  Mr.  Bishop  says  that  "no  government 
is  perfect,  and  some  are  simply  terrible,  but  the  worst  is  im- 
measurably better  than  none."  To  interfere,  therefore,  with 
the  performance  of  an  official  function,  is  a  most  serious  con- 
cern, since  the  public  good  requires  a  due  performance  of  all  offi- 
cial functions,  and  any  person  who  interferes  therewith  is  an 
enemy  to  the  Government. 

§  109.  Destroying^  or  Stealing,  Etc.,  Public  Records. — Section 
128  of  the  New  Code,  which  changes  materially,  in  both  wording 
and  punishment,  old  Section  5403,  reads  as  follows: 

"Whoever  shall  wilfully  and  unlawfully  conceal,  remove,  nui- 
tilate,  obliterate,  or  destroy,  or  attempt  to  conceal,  remove,  mutil- 
ate, obliterate,  or  destroy,  or,  with  intent  to  conceal,  remove, 
mutilate,  obliterate,  destroy,  or  steal,  shall  take  and  carry  away 
any  record,  proceeding,  map,  book,  paper,  document,  or  other 
thing  filed  or  deposited  with  any  clerk  or  officer  of  any  court  of 
the  United  States,  or  in  any  public  office,  or  with  any  judicial  or 


158  OFFENSES  AGAINST   PUBLIC   JUSTICE 

public  officer  of  the  United  States,  shall  be  fined  not  more  than 
two  thousand  dollars,  or  imprisoned  not  more  than  three  years, 
or  both." 

The  very  wording  of  the  statute  itself  incorporates  the  idea 
that  there  must  be  the  specific  intent  to  destroy  or  steal,  or  do 
the  things  denounced  by  the  statute.  Wherever  the  word  "wil- 
ful" is  used,  or  wherever  the  context  of  the  statute  clearly  indi- 
cates that  it  should  be  read  into  the  body  of  the  act.  such  specific 
intent  is  absolutely  necessary,  before  the  offense  can  be  commit- 
ted. In  United  States  vs.  De  Groat.  30  Federal.  7H4.  the  facts 
showed  that  the  Government,  for  want  of  space,  liad  stored  a  vast 
quantity  of  old  Internal  Revenue  records  in  an  out-house,  from 
which  they  were  stolen  by  the  defendants,  and  sold  as  waste 
paper  to  junk  dealers.  The  Court,  in  instructing  a  verdict  of  not 
guilty,  told  the  jury  in  substance  that  the  Act  was  for  the  spe- 
cific purpose  of  the  protection  of  records,  and  did  not  carry 
punishment  for  mere  theft  of  Government  property,  and  the  case 
not  showing  any  intent  on  the  part  of  the  defendants  to  destroy 
records,  but  only  to  steal  something  that  belonged  to  another, 
would  not  support  an  indictment  under  old  Section  5403. 

It  must  be  borne  in  mind,  however,  that  the  old  Connnon  Law 
definition  of  record  and  document  is  not  to  be  used  in  circum- 
scribing and  limiting  the  purpose  of  the  statute  under  discussion. 
It  was  manifestly  intended  to  protect  all  sorts  of  Court  and  pub- 
lic office  records,  including  all  papers  that  are  filed,  whether 
such  papers  be  accurately  or  inaccurately  drawn.  To  this  pur- 
pose and  construction  is  the  case  of  Mclnerney  vs.  United  States, 
143  Federal,  729,  by  the  Circuit  Court  of  Appeals  for  the  First 
Circuit.  In  that  case,  the  Court  held  in  substance  that  the  rule 
that  a  criminal  or  penal  statute  must  be  strictly  construed  does 
not  mean  that  its  language  must  be  given  the  narrowest  interpre- 
tation, but  contemplates  a  reasonable  construction,  in  aid  of  the 
purposes  of  the  Act.  and  Courts  should  adopt  that  sense  of  the 
words  which  harmonizes  best  with  the  context,  and  promotes  in 
the  fullest  manner  the  apparent  policy  and  objects  of  the 
legislature;  and.  therefore,  the  statute  under  consideration, 
which  makes  it  a  criminal  offense  to  steal  or  destroy  any 
record,  paper,  or  proceeding  of  a  Court  of  jvistice,  or  any  paper 


OFFENSES   AGAINST   PUBLIC   JUSTICE  159 

or  document  or  record  filed  or  deposited  in  any  public  office  or 
with  any  judicial  or  public  officer,  will  not  be  construed  so  as  to 
limit  the  meaning  of  the  word  ''record"  and  "document"  to  the 
technical  Common  Law  record  of  Courts  as  unrolled,  or  to  tech- 
nical documents,  but  will  be  used  in  the  ordinary  and  common 
sense,  and  include  all  and  every  part,  not  only  of  such  technical 
records  or  documents,  but  of  any  paper  filed,  which  becomes  a 
part  of  the  records  of  the  Court  or  office,  and  that  a  prosecution 
for  stealing  or  destroying  a  record  of  a  Court  cannot  be  defeated 
by  showing  that  the  record  was  technically  imperfect  or  incor- 
rectly kept.  The  following  cases  may  be  interesting  upon  one 
or  the  other  phases  of  the  statute:  People  vs.  Bussey,  82  Mich., 
49;  State  vs.  Bloor,  20  Mont.,  574;  People  vs.  Peck,  138  N.  Y., 
386;  ex  parte  Tongue,  29  Oregon,  48;  Georgia  vs.  Jennings,  50 
S.  C,  156. 

§  110.  Destroying  Records  by  Oificer  in  Charge. — Old  Section 
5408  is  practically  re-enacted  in  Section  129,  which  reads  as  fol- 
lows: 

"Whoever,  having  the  custody  of  any  record,  proceeding,  map, 
book,  document,  paper,  or  other  thing  specified  in  the  preceding 
section,  shall  wilfully  and  unlawfully  conceal,  remove,  mutilate, 
obliterate,  falsify,  or  destroy  any  such  record,  proceeding,  map, 
book,  document,  paper,  or  thing,  shall  be  fined  not  more  than  two 
thousand  dollars,  or  imprisoned  not  more  than  three  years,  or 
both;  and  shall  moreover  forfeit  his  office  and  be  forever  after- 
ward disqualified  from  holding  any  office  under  the  Government 
of  the  United  States." 

The  substance  of  this  section,  as  well  as  the  substance  of  Sec- 
tion 128,  were  in  the  original  Act  of  February  26,  1853,  10  St. 
at  Large,  170,  and  are  companion  statutes.  It  is  necessary,  in 
prosecutions  under  Section  129,  that  the  party  have  lawful  cus- 
tody of  the  record  or  other  document  or  paper,  as  the  case  may 
be,  before  the  penalty  under  this  statute  can  be  inflicted.  In 
Martin  vs.  United  States,  168  Federal,  198,  the  Circuit  Court  of 
Appeals  of  the  Eighth  Circuit  held  that  a  Clerk  in  the  office  of 
one  who  had  charge  of  certain  Government  records  could  not  be 
prosecuted  under  this  section,  because  he  was  not  lawfully  "in 
custody."  The  meat  of  that  decision  is  that  "custody"  means 
keeping,  and  implies  responsibility  for  the  protection  and  pre- 


160  OFFENSES   AGAINST   PUBLIC   JUSTICE 

servation  of  the  person  or  thing  in  custody ;  and  a  document  in 
a  public  ofifiee  in  the  general  custody  of  a  Commissioner,  and  in 
the  particular  custody  of  his  Chief  Clerk,  under  whom  five  or  six 
subordinate  clerks  are  employed,  who  have  access  to  it,  in  order 
to  discharge  their  duties,  is  not  in  the  custody  of  one  of  the 
latter.  There  is  this  difference,  however,  in  the  old  and  new 
sections:  the  old  section  contained  the  word  ''fraudulently," 
while  the  new  section  contains  the  word  "wilfully."  Under  the 
old  section,  an  intent  to  injure  or  alter  the  rights  or  interests  of 
another,  or  an  effect  to  so  injure  or  alter  some  of  them,  was  es- 
sential to  a  fraud,  and  in  the  absence  of  such  intent,  attempt,  and 
effect,  an  act  could  not  be  done  fraudulently  under  that  section. 
Martin  vs.  United  States,  168  Federal,  198.  Under  the  instant 
section,  however,  fraudulent  intent  is  not  an  ingredient.  This 
section,  like  the  preceding,  denounces  the  acts  therein  specified 
when  they  are  wilfully  done ;  that  is,  when  they  are  committed 
with  the  specific  intent,  as  defined  in  Mclnerney  vs.  United 
States,  143  Federal,  729,  cited  and  discussed  supra. 

Under  the  authority  of  Martin  vs.  United  States,  an  indict- 
ment drawn  in  the  language  of  the  statute  would  be  insufficient. 

§  111.  Forging  Signature  of  Judge,  Etc. — Section  130  of  the 
New  Code  re-enacts  Section  5419  of  the  old  Statutes,  and  reads 
as  follows: 

"Whoever  shall  forge  the  signature  of  any  judge,  register,  or 
other  officer  of  any  court  of  the  United  States,  or  of  any  Terri- 
tory thereof,  or  shall  forge  or  counterfeit  the  seal  of  any  such 
court,  or  shall  knowingly  concur  in  using  any  such  forged  or 
counterfeit  signature  or  seal,  for  the  purpose  of  authenticating 
any  proceeding  or  document  with  a  false  or  counterfeit  signature 
of  any  such  judge,  register,  or  other  officer,  or  a  false  or  counter- 
feit seal  of  the  court  subscribed  or  attached  thereto,  knowing 
such  seal  to  be  false  or  coimterfeit,  shall  be  fined  not  more  than 
five  thousand  dollars,  and  imprisoned  not  more  than  five  years." 

An  indictment  under  the  latter  portion  of  this  section,  which 
relates  to  the  use  of  any  false  signature  or  counterfeit  seal,  would 
be  fatally  defective,  unless  it  alleged  that  the  act  was  knowingly 
done. 

Certificate  of  Bankruptcy,  register  subject  of.  See  ex  parte 
Parks,  93  U.  S.,  18. 


OFFENSES   AGAINST   PUBLIC   JUSTICE  161 

§  112.  Intimidation  or  Corruption  of  Witness  or  Grand  or  Petit 
Juror  or  Officer. — Section  135  of  the  New  Code  contains  all  of  the 
elements  of  the  old  Statutes  5399  and  5404,  changing  the  pun- 
ishment of  both,  and  incorporating  new  words  and  a  somewhat 
broader  meaning,  and  reads  as  follows : 

"Whoever  corruptly,  or  by  threats  or  force,  or  by  any  threat- 
ening letter  or  communication,  shall  endeavor  to  influence,  intim- 
idate, or  impede  any  witness,  in  any  court  of  the  United  States, 
or  before  any  United  States  Commissioner,  or  officer  act- 
ing as  such  commissioner,  or  any  grand  or  petit  juror, 
or  officer  in  or  of  any  court  of  the  United  States,  or  offi- 
cer who  may  be  serving  at  any  examination  or  other  proceeding 
before  any  United  States  Commissioner  or  officer  acting  as  such 
by  threats  or  force,  or  by  any  threatening  letter  or  threatening 
communication,  shall  influence,  obstruct,  or  impede,  or  endeavor 
to  influence,  obstruct,  or  impede  the  due  administration  of  jusr 
tice  therein,  shall  be  fined  not  more  than  one  thousand  dollars,  or 
imprisoned  not  more  than  one  year,  or  both." 

The  offenses  covered  by  this  section  are  not  new.  They  are 
Common  Law  crimes.  The  word  "corrupt,"  as  used  in  each  por- 
tion of  the  .statute,  is  defined  by  Bishop  to  mean  an  evil  purpose, 
and  is  not  restricted  to  the  form  of  evil.  No  particular  definition 
of  the  sort  of  corruption  or  threats  or  intimidation  or  force  can 
be  given.  The  length  and  breadth  of  the  same  must  depend  upon 
the  facts  of  the  particular  case,  as  coming,  within  the  judgment 
of  a  jury  and  Court,  within  the  purview  of  the  statute,  and  which 
would,  if  left  unpunished,  result  in  a  perversion  or  trammeling 
of  our  courts,  witnesses,  officers,  or  litigants.  When  such  would 
appear  to  be  the  natural  result  of  something  done  or  undone,  then 
the  statute  would  seem  to  apply.  In  the  case  of  Wilder  et  all  vs. 
United  States,  143  Federal,  433,  a  form  of  indictment  is  given 
that  was  approved  by  the  Circuit  Court  of  Appeals  for  the 
Fourth  Circuit,  and  a  state  of  facts  which  showed  that  the  de- 
fendant corruptly  endeavored  to  induce  other  persons  to  have 
knowledge  of  facts  in  a  civil  case  which  would  be  material  to  a 
party  to  conceal  or  deny  their  knowledge,  so  as  to  prevent  such 
party  from  obtaining  knowledge  or  procuring  evidence  of  such 
facts,  was  a  violation  of  the  old  Section  5399.  which  is,  in  a  large 
measure,  the  first  part  of  the  new  Section.  In  that  case,  certain 
parties  to  a  civil  action  arranged  and  agreed  to  testify  with  ref- 


162  OFFENSES   AGAINST    I'LBLIC   JUSTICE 

erence  to  certain  corner  trees  that  were  supposed  to  be  the  start- 
ing point  and  one  of  the  boundary  lines  of  the  tract  of  hind  in 
controversy. 

The  words  "due  administration  of  justice"  import  a  free  and 
fair  opportunity  to  every  litigant  in  a  pending  case  in  a  Federal 
Court  to  learn  what  he  may  learn,  if  not  impeded  or  obstructed, 
concerning  material  facts,  and  to  exercise  his  option  as  to  intro- 
ducing testimony  of  such  facts,  and  a  violation  of  this  law  may 
consist  in  preventing  a  litigant  from  learning  facts  which  he 
might  otherwise  learn,  and  in  thus  preventing  him  from  deciding 
for  himself  whether  or  not  to  make  use  of  such  facts. 

Pettibone  vs.  United  States. — The  ranking  authority  under 
these  statutes  is  probably  the  case  of  Pettibone  vs.  United  States, 
148  U.  S.,  197,  37  Law  Ed.,  419.  The  case  gives  excerpts 
from  the  indictment.  The  following  propositions  are  announced 
in  the  case,  which  must  ])e  recognized  and  adhered  to  in  drafting 
indictments : 

1.  There  must  ])e  ;i  specific  allegation  of  an  intent  to  obstruct 
the  administration  of  justice  in  the  Federal  Court. 

2.  There  nuist  l)e  an  jillegation  that  the  defendant  knew  of  the 
proceedings  that  he  was  interfering  with.  The  indictment  must, 
therefore,  contain  the  words  knowingly  and  wilfully.  The  gen- 
eral doctrine  of  the  penal  law  that  ignorance  of  the  law  consti- 
tutes no  defense  to  an  indictment  for  their  violation,  is  a  rule 
that  has  no  application  here.  Knowledge  of  the  court  proceed- 
ings and  of  the  relation  thereto  of  the  party  intimidated  or  oth- 
erwise improperly  approached  is  necessaiy.  Among  the  cases 
cited  by  the  Court  in  the  Pettibone  case  is  United  States  vs.  Bit- 
tinger,  (Mo.),  15  Am.  Law  Reg.  N.  S.,  49,  24  Federal  Cases 
No.  14,598,  in  which  it  was  held  that  a  person  is  a  witness,  under 
Section  5399.  who  is  designated  as  such,  either  by  the  issue  of  a 
subpoena  or  by  the  endorsement  of  his  name  on  the  complaint, 
but  that  before  anyone  could  be  said  to  have  endeavored  to  cor- 
ruptly influence  a  witness  under  that  Section,  he  must  have 
known  that  the  witness  had  been  properly  designated  as  such. 
Under  this  authority,  the  designation  of  a  witness  by  the  Dis- 
trict Attorney,  as  the  including  of  the  name  of  the  witness  in  the 
complaint,  or  in  the  grand  jury  docket,  or  by  issuing  a  subpoena 


OFFENSES   AGAINST    PITBLIC   JUSTICE  163 

therefor,  Avoiild  be,  it  seems,  sufficient.  In  United  States  vs.  Kee, 
39  Federal,  603,  the  Court  instructed  the  jury  that  the  defendant 
would  be  guilty  of  violating  5399,  when  he  beats  one  summoned 
as  a  witness  before  a  United  States  Commissioner,  for  the  pur- 
pose of  intimidating  or  influencing  him  in  giving  his  testimony, 
but  if  the  defendant  did  not  laiow  that  the  one  was  a  witness  be- 
fore the  United  States  Commissioner,  and  beats  him,  on  account 
of  insulting  language,  the  boating  having  no  relation  to  the  char- 
acter of  the  party  as  a  witness,  he  would  not  be  guilty  of  a  vio- 
lation of  the  section.  In  Ignited  States  vs.  Keen,  5  Mason,  453, 
it  was  held  that  it  was  no  defense  to  an  indictment  for  forcibly 
obstructing  or  impeding  an  officer  of  the  customs  in  the  discharge 
of  his  duty  that  the  object  of  the  party  was  personal  chastise- 
ment, and  not  to  obstruct  or  impede  the  officer  in  the  discharge 
of  his  duty,  if  he  knew  the  officer  to  be  so  engaged.  It  is  the 
official  character  that  creates  the  offense,  and  the  scienter  is 
necessary. 

In  Savin's  Petitioner,  131  U.  S.,  267;  ex  parte  McLeod,  120 
Federal,  130 ;  in  re  Brule,  71  Federal,  943,  the  position  is  taken 
that  the  mode  of  punishment  prescribed  by  these  old  sections  was 
not  exclusive,  if  the  offense  was  committed  under  such  circum- 
stances as  to  bring  it  Avithin  Section  725,  which  authorizes  the 
Court  to  punish  for  contempts.  In  Sharon  vs.  Hill,  24  Federal, 
726,  it  was  held  that  the  carrying  of  weapons  into  a  court  room, 
■while  court  was  in  session,  and  threatening  the  life  of  the  lawyer 
and  counsel  engaged  in  conducting  the  litigation  was  an  offense 
under  this  statute,  as  was  also  the  assaulting  of  a  commissioner 
in  United  States  vs.  McLeod,  119  Federal,  416. 

lender  the  authority  of  United  States  vs.  Thomas,  47  Federal, 
807,  and  Ignited  States  vs.  McLeod,  119  Federal,  416,  which  is 
supported  by  the  intent  and  purpose  of  the  statute,  there  must 
be  a  pending  cause.  In  the  Thomas  case,  Thomas  was  a  witness 
on  behalf  of  the  United  States  before  a  United  States  Commis- 
sioner. The  cause  was  dismissed.  Two  months  afterwards 
Thomas  was  assaulted  and  beaten  by  a  gang  of  men  at  his  house 
in  the  night  time.  The  men  were  indicted  under  Section  5399. 
The  position  was  taken  by  the  defendant,  and  sustained  by  the 
Court,  that  as  Thomas  was  not,  at  the  time  of  the  beating,  a  wit- 


]64  UFFEiXSKS   AGAINST    ITHFJC   .FTSTK'K 

ness  in  any  Court  of  the  United  States,  or  in  any  cause  pending 
therein,  the  defendant  eould  not  be  prosecuted  under  that  section. 
In  this  connection,  also  may  he  cited  ex  part(  Robinson,  If)  Wal- 
lace, 505;  in  re  Nagle,  135  U.  S.,  63;  U.  S.  vs.  Memphis  Railroad 
Company,  6  Federal.  237;  U.  S.  vs.  Kilpatrick.  Ifi  Federal,  765; 
U.  S.  vs.  Polite,  35  Federal,  58;  in  re  Nagle,  39  Federal,  833;  U. 
S.  vs.  Armstrong,  59  Federal,  568.  In  in  re  Brule,  71  Federal, 
94.3.  District  Judge  Ilawley  held  upon  a  contempt  proceeding, 
that  the  bribing  of  a  person  who  is  known  to  be  a  material  wit- 
ness in  a  pending  cause  to  hide  himself  and  remain  away  from 
the  Court,  thereby  preventing  his  testifying  in  such  case,  is  pun- 
ishable b}'  indictment  under  Section  53!)!). 

§  113.  Conspiring  to  Intimidate  Party,  Witness,  or  Jury. — ^Sec- 
tion  136  of  the  New  Code,  which  supersedes  old  Section  5406, 
reads  as  follows: 

"If  two  or  more  persons  conspire  to  deter  by  force,  intimida- 
tion, or  threat,  any  party  or  witness  in  any  court  of  tlie  United 
States,  or  in  any  examinaticm  before  a  United  States  Commission- 
er or  officer  acting  as  such  commissioner,  from  attending  such 
court  or  examination,  or  from  testifying  to  any  matter  pending 
therein,  freely,  fully,  and  truthfully,  or  to  injure  such  party  or 
witness  in  his  person  or  property  on  account  of  his  having  so  at- 
tended or  testitied,  or  to  intiuence  the  verdict,  presentment,  or 
indictment  of  any  grnnd  or  petit  juror  in  any  such  court,  or  to 
injure  such  juror  in  his  person  or  property,  on  account  of  any 
verdict,  presentment  or  indictment  lawfully  assented  to  by  him, 
or  on  account  of  his  being  or  having  been  such  juror,  each  of  such 
persons  shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  six  years,  or  both." 

The  old  section  contained  a  minimum  punishment  of  six  months. 
The  most  interesting  change  in  the  new  section  is  the  addition 
of  the  words,  "or  in  any  examination  before  a  United  States 
Commissioner,  or  officer  acting  as  such  commissioner,"  The  Su- 
preme Court  of  the  United  States,  in  the  case  of  Todd  vs.  United 
States,  158  United  States,  page  278,  Book  39  Law  Ed..  982.  held 
that  a  preliminary  examination  before  a  Commissioner  is  not  a 
proceeding  "in  any  court  of  the  United  States"  within  the  mean- 
ing of  the  old  Section  5406.  In  that  case  the  Court  observed 
that  it  doubtless  was  within  the  power  of  Congress  to  legislate 
so  as  to  fully  protect  every  witness  called  upon  by  the  laws  of  the 


OFFENSES   AGAINST    PUBLIC   JUSTICE  165 

United  States  to  give  testimony  in  any  ease  and  under  any  cir- 
cumstance, but  that  the  wording  of  5406  limited  such  protection 
to  those  who  had  dealing  with  a  "court''  of  the  United  States. 
Under  the  new  section,  as  above  quoted.  Congress  has  seen  fit  to 
legislate  as  suggested  by  the  Supreme  Court,  and  the  present 
statute,  therefore,  punishes  all  conspiracies  to  deter  by  either 
force,  intimidation,  or  threat,  any  party  or  any  witness  in  any 
court  of  the  United  States,  or  in  any  examination  before  a  United 
States  Commissioner,  or  officer  acting  as  such  commissioner. 

This  legislation  was  made  neces.sary  because  of  the  decision  in 
the  Todd  case,  and  because  of  that  line  of  decisions  therein  cited, 
which  clearly  distinguished  United  States  Commissioners  and 
Circuit  Court  Commisvsioners  from  Judges  and  United  States 
Courts. 

The  form  of  indictment  given  in  the  Todd  case  is  thought  to 
contain  all  of  the  elements  that  are  necessary  in  charging  an 
offense  under  the  new  statute,  with  the  possible  exception  that  the 
bill  could  be  made  stronger,  and  undoubtedly  good,  if  it  con- 
tained an  allegation  of  knowledge. 

§  114.  Attempt  to  Influence  Jury. — New  Section  137,  in  the  fol- 
lowing words : 

"Whoever  shall  attempt  to  influence  the  action  or  decision  of 
any  grand  or  petit  juror  of  any  court  of  the  United  States  upon 
any  issue  or  matter  pending  before  such  juror,  or  before  the  jury 
of  which  he  is  a  member,  or  pertaining  to  his  duties,  by  writing 
or  sending  to  him  any  letter  or  any  communication  in  print  or 
writing,  in  relation  to  such  issue  or  matter,  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more  than  six 
months,  or  both," 

replaces  old  Section  5405. 

There  have  been  few,  if  any,  adjudications  under  this  section, 
as  disclosed  by  the  annotators  and  court  reports.  It  is  almost 
universal  in  its  broadness,  and  would  seem  to  cover  practically 
any  communication.  In  United  States  vs.  Kilpatrick.  16  Federal, 
765,  is  a  distinguished  Court  opinion  covering  communications  by 
officers  and  others  to  grand  jurors,  and.  in  general,  the  conduct 
of  such  body. 

This  statute,  in  connection  with  Sections  135  and  132,  are  in- 


inn  OFFKXRRR    AGAINST    ITHLIC   JUSTICE 

tended  directly  and  primarily  for  the  preservation  of  the  purity 
of  the  juror  in  the  performance  of  his  oflficial  duty. 

§  115.  Allowing  Prisoner  to  Escape. — Section  138  of  the  New 
Code  is  in  the  exact  words  of  Section  5409  of  the  old  statutes, 
and  reads  as  follows : 

"Whenever  any  marshal,  deputy  marshal,  ministerial  officer,  or 
other  person  has  in  his  custody  any  prisoner  by  virtue  of  process 
issued  under  the  laws  of  the  United  States  by  any  court,  judge,  or 
commissioner,  and  such  marshal,  deputy  marshal,  ministerial 
officer,  or  other  person  voluntarily  suffers  such  prisoner  to  escape, 
he  shall  be  fined  not  more  than  two  thousand  dollar,  or  imprison- 
ed not  more  than  two  years,  or  both." 

This  statute,  of  course,  applies  to  a  State  Deputy  Sheriff  or 
Jailer  who  has  control,  under  legal  authority  and  process,  of 
a  Federal  prisoner.  By  Section  139,  the  above  statute  applies 
not  only  to  domestic  prisoners,  but  any  prisoner  in  custody, 
charged  with  an  offense  against  a  foreign  government  with 
which  the  United  States  has  a  treaty  of  extradition,  and  also 
to  prisoners  held  in  custody  for  removal  to  the  Philippine 
Islands.    It  is  practically  the  same  as  old  Statute  5410. 

§116.  Rescuing,  Etc.,  Prisoner;  Concealing,  Etc.,  Prisoner  for 
Whom  Warrant  Has  Issued. — Section  141  of  the  New  Code,  in  the 
following  words : 

"Whoever  shall  rescue  or  attempt  to  rescue  from  the  custody 
of  any  officer  or  person  lawfully  assisting  him,  any  person  ar- 
rested upon  a  warrant  or  other  process  issued  under  the  pro- 
visions of  any  law  of  the  United  States,  or  shall,  directly  or  in- 
directly, aid,  abet,  or  assi.st  any  person  so  arrested  to  escape  from 
the  custody  of  such  officer  or  other  person,  or  shall  harbor  or 
conceal  any  person  for  whose  arrest  a  warrant  or  process  has 
been  so  issued,  so  as  to  prevent  his  discovery  and  arrest,  after 
notice  or  knowledge  of  the  fact  that  a  warrant  or  process  has 
been  issued  for  the  apprehension  of  such  person,  shall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not  more  than 
six  months,  or  both," 

is  a  substitute  for  old  Sections  5401  and  5516.  The  new  statute, 
it  will  be  noted,  creates  several  offenses:  that  of  rescuing  or  at- 
tempting to  rescue;  that  of  directly  or  indirectly  aiding,  abet- 
ting, or  assisting  any  person  to  escape ;  that  of  harboring  or  con- 
cealing any  person  for  whose  arrest  a  warrant  has  been  issued. 


OFFENSES   AGAINST    PUBLIC   JUSTICE  167 

A  successful  prosecution  could  not  be  had  under  either  of  the 
provisions  of  this  statute,  miless  the  person  attempted  to  be  res- 
cued was  in  the  possession  of  an  officer  lawfully,  and  it  is  thought 
that  the  indictment  must  contain  an  allegation  of  Imowledge. 
The  latter  section  of  the  statute,  which  relates  to  concealing,  re- 
quires that  before  one  can  offend  he  must  have  knowledge  that 
process  has  been  issued  for  the  prisoner. 

§  117.  Rescue  at  Execution;  Rescue  of  Prisoner,  and  Rescue  of 
Body  of  Executed  Offender. — The  above  three  offenses  are  covered 
by  Sections  142.  143,  and  144  of  the  New  Code,  and  were  orig- 
inally old  Sections  5400,  5401,  and  5402  of  the  1878  Statutes. 
These  new  statutes,  in  their  order,  read  as  follows : 

"Sec.  142.  Whoever,  by  force,  shall  set  at  liberty  or  rescue 
any  person  foimd  guilty  in  any  court  of  the  United  States  of  any 
capital  crime,  while  going  to  execution  or  during  execution, 
shall  be  fined  not  more  than  twenty-five  thousand  dollars  and  im- 
prisoned not  more  than  one  year." 

"See.  143.  Whoever,  by  force,  shall  set  at  liberty  or  rescue 
any  person  who,  before  conviction,  stands  committed  for  any 
capital  crime ;  or  M'hoever,  by  force,  shall  set  at  liberty  or  rescue 
any  person  committed  for  or  convicted  of  any  offense  other  than 
capital,  shall  be  fined  not  more  than  five  hundred  dollars  and 
imprisoned  not  more  than  one  year." 

' '  Sec.  144.  Whoever,  by  force,  shall  rescue  or  attempt  to  res- 
cue from  the  custody  of  any  marshal  or  his  officers,  the  dead 
body  of  an  executed  offender,  while  it  is  being  conveyed  to  a 
place  of  dissection  as  provided  by  section  three  hundred  and 
thirty-one  hereof,  or  by  force  shall  rescue  or  attempt  to  rescue 
such  bod.y  from  the  place  where  it  has  been  deposited  for  dissec- 
tion in  pursuance  of  that  section,  shall  be  fined  not  more  than 
one  hundred  dollars,  or  imprisoned  not  more  than  one  year,  or 
both." 

§  118.  Extortion  by  Internal  Revenue  Informers. — Section  145 
of  the  New  Code  is  a  substantial  re-enactment  of  old  Section 
5484,  and  reads  as  follows: 

"Sec.  145.  Whoever  shall,  under  a  threat  of  informing,  or  as 
a  consideration  for  not  informing,  against  any  violation  of  any 
law  of  the  United  States,  demand  or  receive  any  money  or  other 
valuable  thing,  shall  be  fined  not  more  than  two  thousand  dol- 
lars, or  imprisoned  not  more  than  one  year,  or  both." 


168  OFFENSKS   AOAIN'ST    PT'BTJC    .TT'RTIf'F 

§  111).  Misprision  of  Felony. — Section  146  of  the  New  Code  re- 
enacts  old  Section  5890,  in  the  following  words: 

"Sec.  146.  Whoever,  having  knowledge  of  the  actual  com- 
mission of  the  crime  of  murder  or  other  felony  cognizable  by  the 
courts  of  the  United  States,  conceals  and  does  not  as  soon  as 
may  be  disclosed  and  make  known  the  same  to  some  one  of  the 
judges  or  other  persons  in  civil  or  military  authority  under  the 
Ignited  States,  shall  he  fined  not  more  than  five  lumdred  dollars, 
or  imprisoned  not  more  than  three  years,  or  both." 

This  section  is  a  companion  to  Section  145.  above  quoted,  and 
the  two  together  are  thought  to  guarantee  publicity  for  violators, 
and  immunity  of  such  violators  from  those  who  would  prey  npon 
them.  Prosecutions  under  either  of  these  are  not  disclosed  by 
prision  to  be  crimnial  neglect,  either  to  prevent  the  commission 
of  crime,  or  to  bring  to  justice  the  offender  after  its  commission, 
annotations.  Bishop  in  his  new  Criminal  Law,  defines  mis- 
jMisprision  of  misdemeanor  is  unknown  to  the  language  of  the 
law,  but  misprision  of  treason  was  held  to  be  a  Common  Law 
treason.  AVe  will  later  see  that  by  Federal  statute,  misprision 
of  treason  is  denounced  in  old  Section  5:583  and  new  Section  3. 

§  120.  Bribery. — Tn  four  sections,  the  New  Code  covers  the  of- 
fenses denounced  by  Sections  5440  and  5490  of  the  old  Statutes, 
and  then  creates  new  offenses. 

§  121.  Bribery  of  a  Judge  or  Judicial  Officer. — Section  131  of 
the  New  Code  amplifies  and  enlarges  old  Section  5449.  and  reads 
as  follows: 

"Whoever,  directly  or  indirectly,  shall  give  or  offer,  or  cause 
to  be  given  or  offered,  any  money,  property,  or  value  of  any 
kind,  or  any  promise  of  agreement  therefor,  or  any  other  bribe, 
to  any  jndge,  jndicial  officer,  or  other  person  authorized  by  any 
law  of  the  United  States  to  hear  or  determine  any  question,  mat- 
ter, cause,  proceeding,  or  controversy,  with  intent  to  influence 
his  action,  vote,  opinion,  or  decision  thereon,  or  because  of  any 
such  action,  vote,  opinion,  or  decision,  shall  be  fined  not  more 
than  twenty  thousand  dollars,  or  imprisoned  not  more  than  fif- 
teen years,  or  both ;  and  shall  forever  be  disqualified  to  hold  any 
office  of  honor,  trust,  or  profit  under  the  United  States. ' ' 

§  122.  Judge  or  Judicial  Officer  Accepting  Bribe,  Etc. — Seetion 

132  of  the  New  Code  practically  re-enacts  old  Section  5499,  and 

reads  as  follows: 


OFFENSES   AGAINST   PUBLIC   JUSTICE  169 

"Sec.  132.  Whoever,  being  a  judge  of  the  United  States, 
shall  in  any  wise  accept  or  receive  any  sum  of  money,  or  other 
bribe,  present,  or  reward,  or  any  promise,  contract,  obligation, 
gift,  or  other  security  for  the  payment  of  money,  or  for  the  de- 
livery or  conveyance  of  anything  of  value,  with  the  intent  to  be 
influenced  thereby  in  any  opinion,  judgment,  or  decree,  in  any 
suit,  controversy,  matter,  or  cause  depending  before  him,  or  be- 
cause of  any  such  opinion,  ruling,  decision,  judgment,  or  decree, 
shall  be  fined  not  more  than  twenty  thousand  dollars,  or  impris- 
oned not  more  than  fifteen  years,  or  both ;  and  shall  be  forever 
disfiualified  to  hold  any  office  of  honor,  trust,  or  profit  under  the 
United  States." 

This  section  relates  only  to  the  acceptance  of  a  bribe  by  a 
judge,  but  the  following  section  covers  practically  every  person 
authorized  by  any  law  of  the  United  States  to  hear  or  determine 
any  question. 

§  123.  Juror,  Referee,  Master,  TJ.  S.  Commsisoner,  or  Judicial 
Officer,  Etc.,  Accepting  Bribe. — Section  133  of  the  New  Code,  in 
the  following  words : 

"Sec.  133.  Whoever,  being  a  juror,  referee,  arbitrator,  ap- 
praiser, assessor,  auditor,  master,  receiver,  United  States  Com- 
missioner, or  other  person  authorized  by  any  law  of  the  United 
States  to  hear  or  determine  any  question,  matter,  cause,  con- 
troversy, or  proceeding,  shall  ask,  receive,  or  agree  to  receive, 
any  money,  property,  or  value  of  any  kind,  or  any  promise  or 
agreement  therefor,  upon  any  agreement  or  understanding  that 
his  vote,  opinion,  action,  judgment,  or  decision,  shall  be  influ- 
enced thereby,  or  because  of  any  such  vote,  opinion,  action,  judg- 
ment, or  decision,  shall  be  fined  not  more  than  two  thousand 
dollars,  or  imprisoned  not  more  than  two  years,  or  both," 

creates  offenses  that  were  unknown  to  the  old  statute. 

^  124.  Witness  Accepting  Bribe. — Section  134  of  the  New  Code, 
which  reads  as  follows: 

"Sec.  134.  Whoever,  being,  or  about  to  be,  a  witness  upon  a 
trial,  hearing,  or  other  proceeding,  before  any  court,  or  any  offi- 
cer authorized  by  the  laws  of  the  United  States  to  hear  evidence 
or  take  testimony,  shall  receive,  or  agree  or  offer  to  receive,  a 
bribe,  upon  any  agreement  or  understanding  that  his  testimony 
shall  be  influenced  thereby,  or  that  he  will  absent  himself  from 
the  trial,  hearing,  or  other  proceeding,  or  because  of  such  testi- 
mony, or  such  absence,  shall  be  fined  not  more  than  two  thou- 
sand' dollars,  or  imprisoned  not  more  than  two  years,  or  both," 


170  OFFKNSKS   AUALNST    I'lJiLIC   JUSTICE 

is  likewise  an  entirely  new  statute,  without  any  parallel  in  the 
Statutes  of  1878. 

§  125.  Members  of  Congress  Accepting  Bribes,  Etc. — In  the  next 
Chapter,  under  the  head  of  Offenses  Relating  to  Official  Duties, 
will  be  found  a  discussion  and  citation  of  the  statutes  of  the 
New  Code  that  inhibit  members  of  Congress  and  other  United 
States  officers  from  accepting  bribes,  such  statutes  and  treat- 
ment, however,  being  in  a  different  Cliapter,  for  the  reason  that 
they  do  not  relate  directly  to  offenses  against  public  justice. 


CHAPTER  VI. 
OFFENSES  RELATING  TO  OFFICIAL  DUTIES. 

§  126.  Extortion,  Generally;  Definition,  Etc. 

127.  Extortion  as  a  Federal  Offense:  5481 — 85. 

128.  Receipting  for  Larger  Sums   Than  are  Paid:    5483 — 86. 

129.  Species  of  Embezzlement :  5488,  5489,  5490,  5491,  5492,  5493,  5494, 

5495,  5496,  and  5497—87,  88,  89,  90,  91,  92,  93,  94,  95,  96,  97, 
98,  99,  100,  and  101. 

130.  Disbursing    Officers   Unlawfully    Converting,    Etc.,   Public   Money: 

New  Code,  87. 

131.  Failure  of  Treasurer  to  Safely  Keep  Public  Funds:  New  Code,  88. 

132.  Custodians  of  Public  Money  Failing  to  Safely  Keep:   New  Code, 

89. 

133.  Failure  of  Officer  to  Render  Accounts,  Etc. :  90. 

134.  Failure  to  Deposit,  as  Required:   New  Code,  91. 

135.  Provisions   of    the    Five   Preceding   Sections,    How    Applied:    New 

Code,  92. 

136.  Record  Evidence  of  Embezzlement :  New  Code,  93. 

137.  Prima  Facie  Evidence:  New  Code,  94. 

138.  Evidence  of  Conversion:  New  Code,  95. 

139.  Banker,    Etc.,    Receiving   Deposit    From    Disbursing   Officer:    New 

Code,  96. 

140.  Embezzlement  by  Internal  Revenue  Officers,  Etc.:  New  Code,  97. 

141.  Officer  Contracting  Beyond  Specific  Appropriation:   5503 — 98. 

142.  Officer  of  United  States  Court  Failing  to  Deposit  Moneys,  Etc.: 

5504—99. 

143.  Receiving  Loan  or  Deposit  from  Officer  of  Court:  New  Code,  100. 

144.  Failure  to  Make  Returns  or  Reports:   1780 — 101. 

145.  Aiding  in  Trading  in  Obscene  Literature,  Etc. :   1785 — 102. 

146.  Collecting  and  Disbursing  Officers  Forbidden  to  Trade  in  Public 

Funds:    1788  and  1789—103. 

147.  Judges,  Clerks,  Deputies,  ^larshals,  and  Attorneys,  and  Their  Dep- 

uties Forbidden  to  Purchase  Witness  Fees,  Etc. :  29  St.  L.,  595 
—104. 

148.  Falsely  Certifying,  Etc.,  as  to  Record  of  Deeds:  New  Code,  105. 

149.  Other  False  Certificates:   New  Code,  106. 

150.  Inspector  of  Steamboats  Receiving  Illegal  Fees:  5482 — 107. 

151.  Pension  Agent  Taking  Fee,  Etc.:   5487—108. 

171 


172  OFFENSES    RELATlXfi    TO    OFFIfTAL    DT'TIES 

152.  Officer    not    to    Be    Interestetl    in    Claims    Ajjainst    United    States: 

5498—109. 

153.  Member   of    Congress,    Etc.,    Soliciting   or    Accepting    Bribe:    1781 

and  5500  and  5502—110. 

154.  Offering,  Etc.,  Member  of  Congress  Bribe:  5450 — 111. 

155.  Member  of  Congress  Taking  Consideration  for  Procuring  Contracts, 

Offices,  Etc.;  Offering  Member  Consideration,  Etc.:   1781 — 112. 

156.  Member   of   Congress   Taking   Compensation    in    Matters   to    Which 

the  United  States   Is  a  Party:    1782—113. 

157.  Member  of  Congress  Not  to  Be  Interested  in  Contract:   3739 — 114. 

158.  Officer  Making  Contract  with  Member  of  Congress:   3742 — 115. 

159.  Contracts  to  Which  the  Two  Preceding  Sections  Do  Not   Apply: 

3740—116. 

160.  United  States  Officer  Accepting  Bribe:   5501   and  5502—117. 

161.  Political    Contributions    Not    to    Be   Solicited    by    Certain    Officers: 

New  Code,    118. 

162.  Political  ('out  ribiitioiis  Not  to  Be  Keceived  in   Public  Offices:   New 

Code,  119. 

163.  Immunity  from  Official  Proscription,  Etc.:  New  Code,  120. 

164.  Giving  Money,  VAc,  to  Officials  for  Political  Puri)oses  Prohibited: 

New  Code,  121. 

165.  IVnalty   for  Violating  the  Provisions   of  the   Four  Preceding  Sec- 

tions, New  Code,   122. 

166.  All  of  the  Above,  Civil  Service  Act:   I  Sup.,  396. 

167.  Government    Officer,    p]tc.,    Giving    Out    Advance    Information    Re 

specting  Crop  Reports:  New  Code,  123. 

168.  Government   Officer,   Etc.,   Knowingly   Compiling   or   Issuing  False 

Statistics  Resj)ecting  Crops:   New  Code,   124. 

169.  Counterfeiting  Weather  Forecasts;   Interfering  with  Signals,  Etc.: 

33  St.  L.,  864. 

§  120.  Extortion. — At  the  Common  Law,  extorti(ni  was  one  of 
the  forms  of  inalfcasanee  in  office.  IMr.  I^ishop.  in  his  second  vol- 
ume of  Criminal  Law.  at  page  225,  says  that  those  who  assume 
official  position  place  themselves  therehy  in  circumstances  to  ex- 
ert a  certain  power,  which  brings  with  it  corresponding  obliga- 
tions, cognizable  by  the  Criminal  Law,  and  among  wrongful  offi- 
cial acts,  extortion  is  particularly  reprehensible.  Hence  it  is. 
that  the  law  separates  it  from  the  rest  under  a  name  of  its  own. 
Anderson,  in  his  Dictionary  of  Law,  defines  extortion  to  be  "that 
abuse  of  public  justice  which  consists  in  an  officer's  unlawfully 
taking,  by  color  of  his  office,  from  any  man,  any  money  or  thing 
of  value  that  is  not  due  to  him,  or  more  than  is  due,  or  before  it 


OFFENSES    RELATING    TO    OFFICIAL    DUTIES  173 

is  due,  obtaining  money  or  other  valuable  thing  by  compulsion 
or  force  of  motives  applied  to  will."  Wharton,  in  his  second 
volume  of  Criminal  Law,  paragraph  1574,  defines  extortion  as 
any  oppression  by  color  of  right.  Bishop,  in  his  second  volume 
of  Criminal  Law,  page  225,  defines  it  as  the  "corrupt  demanding 
or  receiving  by  a  person  in  office  of  a  fee  for  services  which  should 
be  rendered  gratuitously ;  or,  where  compensation  is  permissible, 
of  a  larger  fee  than  the  law  justifies,  or  a  fee  not  yet  due." 
Corruption,  as  used  in  these  definitions,  and  as  applied  to  the 
offense  of  extortion,  implies  an  evil  mind ;  hence  it  is  not  com- 
mitted when  the  fee  comes  vohmtarily,  in  return  for  real  bene- 
fits conferred  by  extra  exertions  put  forth.  Second  Bishop's 
Criminal  Law,  page  226;  State  vs.  Stotts,  5  Black.,  460;  Rex.  vs. 
Baines,  6  IMod..  192;  Williams  vs.  S..  2  Sneed,  160;  Evans  vs. 
Trenton,  4  Zab.,  764. 

§  127.  Federal  Offense. — The  general  statute  against  extortion 
was  old  Section  5481,  which  limited  extortion  to  an  "officer"  of 
the  United  States.  Under  the  authorities  of  United  States  vs. 
Schlierholz,  in  137  Federal,  616,  and  United  States  vs.  same,  in 
133  Federal,  333.  and  the  cases  therein  cited,  it  appeared  that  the 
various  bureaus  of  the  Executive  and  Judicial  Departments  of 
the  Government  were  administering  their  respective  affairs 
through  so  many  agents  and  clerks  and  employees,  who.  in  turn, 
could  and  did  practice  extortion  and  such  sort  of  malfeasance, 
but  who  are  not  really  "officers''  within  the  meaning  of  the  Act 
and  the  decisions  and  authorities  above  referred  to,  that  Con- 
gress passed  the  Act  of  June  28,  1906,  amending  Section  5481, 
which  is  now  practically  re-enacted  in  Section  85  of  the  New 
Code,  which  is  in  the  following  words: 

"Sec.  85.  Every  officer,  clerk,  agent,  or  employee  of  the  Uni- 
ted States,  and  every  person  representing  himself  to  be  or  as- 
suming to  act  as  such  officer,  clerk,  agent,  or  employee,  who,  un- 
der color  of  his  office,  clerkship,  agency,  or  employment,  or  under 
color  of  his  pretended  or  assumed  office,  clerkship,  agency,  or 
employment,  is  guilty  of  extortion,  and  every  person  who  shall 
attempt  any  act  which  if  performed  would  make  him  guilty  of 
extortion,  shall  be  fined  not  more  than  five  hundred  dollars,  or 
imprisoned  not  more  than  one  year,  or  both." 

The  above  statute  includes  not  only  every  officer  of  the  United 


174  OFFENSKS    KKI.ATINd    'I'O    Ol-'FK '|  Al.    Dl'IMKS 

States,  but  every  clerk,  agent,  employee,  and  every  other  person. 

The  Supreme  Court  of  the  Ignited  States,  in  Williams  vs. 
United  States,  168  U.  S.,  382,  42  Law  Ed..  512.  licld  that  a  Chi- 
nese Inspector  could  be  guilty  of  extortion  under  th(?  old  Sec- 
tion. Other  cases  of  more  or  h^ss  interest  are  Cnitcd  States  vs. 
Germane,  99  U.  S.,  508;  U.  S.  vs.  Waitz,  3  Savvy.,  28  Fed.  Cases 
No.  16,631. 

Tn  United  States  vs.  ITarned,  43  Federal.  376.  a  District  Judge, 
in  passing  upon  a  moticm  to  dismiss  the  prosecution,  held  that  the 
word  "extortion"  implies  that  the  money  paid  was  extorted  on 
the  part  of  the  one  who  received  it,  and  was  paid  unwillingly  by 
the  party  paying  the  same,  and  that,  therefore,  where  there  was 
a  voluntary  payment  by  the  witness,  knowing  at  the  time  that  it 
was  in  excess  of  the  amount  that  was  required  to  be  paid,  and 
that  the  same  was  willingly  paid,  and  not  demanded,  would  not 
support  a  prosecution,  and  therefore  the  motion  to  dismiss  was 
granted. 

Bearing  in  mind  the  dotinitions  above  quoted,  and  that  there 
must  hv  an  alh^gation  of  corruptness,  as  above  defined,  it  is  not 
believed  that  the  ll.inied  case  .states  Uw  rule  correctly.  The 
purpose  of  the  statute  is  to  prevent  the  receipt  by  an  officer  of 
money  in  excess  of  tliat  to  whicli  he  is  h'gally  entitled,  and  if  he 
asks  for  more,  with  knowledge  and  corrupt  purpose,  the  asking, 
it  is  thought,  would  be  the  demand  comprehended  in  the  defini- 
tions, and  the  payment  thereof  would  be  sufficiently  unwilling 
under  the  law  to  constitute  the  offense  of  extortion.  It  is  not 
here  argued  that  an  innocent  overcharge  or  an  overpayment  or 
an  overdemand.  or  a  taking  of  property  or  money  without  the 
corrupt  thought  and  intent,  would  constitute  the  offense ;  but 
when  an  officer,  knowing  he  is  entitled  to  a  certain  sum,  delib- 
erately and  corruptly  makes  his  bill  or  demand  for  a  larger  sum. 
public  policy  would  demand  that  he  suffer  prosecution  under 
this  statute. 

The  case  of  United  States  vs.  ]\Ioore.  in  the  18  Federal.  ])age 
686,  is  a  prosecution  under  old  Section  5485.  for  demanding  or 
receiving  a  greater  sum  than  ten  dollars  in  a  pension  case,  and 
its  reasoning  may  be  of  interest  in  studying  the  instant  statute. 
Under  the  Revenue  Acts,  considered  elsewhere,  will  be  found  a 


OFFENSES    RELATING   TO    OFFICIAL    DUTIES  175 

statute  relating  to  extortion  by  revenue  officers  or  agents.  Un- 
der the  old  law,  this  inhibition  was  contained  in  Section  3169. 
The  case  of  United  States  vs.  Deaver,  14  Federal,  595,  in  passing 
upon  this  particular  statute,  detines  extortion  to  be  the  taking 
or  obtaining  of  anything  from  another  by  a  public  officer,  by 
means  of  illegal  compulsion  or  oppressive  exaction,  and  holds 
that  an  officer  who  collects  a  sum  of  money  as  special  taxes  from 
a  person  as  wholesale  and  retail  dealer  in  spirits,  when  no  such 
taxes  have  been  regularly  assessed  against  him,  is  guilty  of  op- 
pression, although  such  party  has  been  guilty  of  selling  spirits 
at  wholesale  and  retail,  without  a  license,  as  required  by  law, 
and  the  fact  that  he  reported  such  taxes  to  the  Collector  of  the 
District  as  received,  and  the  Collector  of  the  District,  in  his  set- 
tlement with  the  Revenue  Department  was  required  to  pay  the 
sum  collected  after  the  manner  of  its  collection  was  fully  known 
to  the  Department,  will  not  render  legal  the  acts  of  the  defend- 
ant, knowingly  and  wilfully  done  without  authority  of  law. 

That  same  case,  in  considering  further  the  offense,  decided 
in  substance,  that  the  principle  and  policy  of  the  Common  Law 
that  a  ministerial  officer  who  had  arrested  a  person,  and  who 
takes  from  such  person  money,  or  other  reward,  under  a  pretense 
or  promise  of  getting  the  offender  discharged,  is  guilty  of  a  crim- 
inal offense,  and  under  the  Section  3169  is  extended  to  officers 
of  the  Revenue,  and  any  such  officer  who  accepts  or  attempts  to 
collect,  directly  or  indirectly,  as  payment  or  gift  or  otherwise, 
any  sum  of  money  or  other  thing  of  value,  for  a  compromise  of 
a  violation  of  the  Revenue  laws,  is  guilty  of  a  misdemeanor. 

§  128.  Receipting  for  Larger  Sums  than  are  Paid. — Section 
5483  of  the  old  Statutes,  is  changed  by  Section  86  of  the  New 
Code,  which  reads  as  follows : 

"Sec.  86.  "Whoever,  being  an  officer,  clerk,  agent,  employee, 
or  other  person  charged  with  the  payment  of  any  appropriation 
made  by  Congress,  shall  pay  to  any  clerk  or  other  employee  of 
the  T'^nited  States  a  sum  less  than  that  provided  by  law,  and  re- 
quire such  employee  to  receipt  or  give  a  voucher  for  an  amount 
greater  than  that  actually  paid  to  and  received  by  him,  is  guilty 
of  embezzlement,  and  shall  be  fined  in  double  the  amount  so 
Avithheld  from  any  employee  of  the  Government,  and  imprisoned 
not  more  than  two  years." 


176  OFFENSES    RELATING    TO    OFFICIAL    DUTIES 

The  old  statute  was  limited  by  the  word  ' '  officer, ' '  just  as  was 
old  Section  5481.  New  Section  86,  however,  includes  not  only 
"officer,"  but  clerk,  agent,  or  employee,  or  other  person,  and  in 
such  broadness  includes,  it  is  thought,  every  paying  officer  of  the 
Federal  Government.  In  United  States  vs.  Mayers,  81  Federal, 
page  159,  which  was  a  decision  under  the  old  statute,  a  post- 
master was  held  to  be  an  "officer"  within. the  meaning  of  that 
statute,  and  subject  to  indictment  for  having  received  a  receipt 
for  a  larger  amount  than  that  which  he  actually  paid  a  letter 
carrier  employed  in  his  office.  That  decision  also  contains  a 
copy  of  the  indictment  in  that  case,  which  was  held  to  be  suffi- 
cient. 

§  129.  Species  of  Embezzlement.— Sections  5488,  5489,  5490, 
5491,  5492,  5493,  5494,  5495,  5496,  and  5497  of  the  1878  Re- 
vised Statutes,  denominate  certain  acts  with  reference  to  hand- 
dlers  of  the  public  money,  such  as  disbursing  officers  and  depos- 
itories, to  be  statutory  embezzlements,  the  specific  elements  of 
which  are  respectively  therein  included.  These  statutes  are  prac- 
tically re-enacted  under  the  following  sections  of  the  New  Code. 

§  130.  Disbursing  Officer  Unlawfully  Converting^,  Etc.,  Public 
Money, — Section  87  of  the  New  Code  reads  as  follows: 

"Sec.  87.  Whoever,  being  a  disbursing  officer  of  the  United 
States,  or  a  person  acting  as  such,  shall  in  any  manner  convert 
to  his  own  use,  or  loan  with  or  without  interest,  or  deposit  in  any 
place  or  in  any  manner,  except  as  authorized  by  law,  any  public 
money  intrusted  to  him ;  or  shall,  for  any  purpose  not  prescribed 
by  law,  withdraw  from  the  Treasurer,  or  any  assistant  treasurer, 
or  any  authorized  depository,  or  transfer,  or  apply,  any  portion 
of  the  public  money  intrusted  to  him,  shall  be  cleemed  guilty  of 
an  embezzlement  of  the  money  so  converted,  loaned,  deposited, 
withdrawn,  transferred,  or  applied,  and  shall  be  fined  not  more 
than  the  amount  embezzled,  or  imprisoned  not  more  than  ten 
years,  or  both. ' ' 

§  131.  Failure  of  Treasurer  to  Safely  Keep  Public  Moneys.— 
Section  88  of  the  New  Code  is  in  the  following  words : 

"Sec.  88.  If  the  Treasurer  of  the  United  States,  or  any  assist- 
ant treasurer,  or  any  public  depository,  fails  safely  to  keep  all 
moneys  deposited  by  any  disbursing  officer  or  disbursing  agent, 
as  well  as  all  moneys  deposited  by  any  receiver,  collector,  or 
other  person  having  money  of  the  United  States,  he  shall  be 


OFFENSES    RELATING    TO   OFFICIAL    DUTIES  I77 

deemed  guilty  of  embezzlement  of  the  moneys  not  so  safely  kept, 
and  shall  be  fined  in  a  sum  equal  to  the  amount  of  money  so  em- 
bezzled and  imprisoned  not  more  than  ten  years." 

§  132.  Custodians  of  Public  Money  Failing  to  Safely  Keep,  Etc. 
— New  Section  89  reads  as  follows : 

"See.  89.  Every  officer  or  other  person  charged  by  any  Act 
of  Congress  with  the  safe-keeping  of  the  public  moneys,  who  shall 
loan,  use,  or  convert  to  his  oa\ti  use,  or  shall  deposit  in  any  bank 
or  exchange  for  other  funds,  except  as  specially  allowed  by  law, 
any  portion  of  the  public  moneys  intrusted  to  him  for  safe- 
keeping, shall  be  guilty  of  embezzlement  of  the  money  so  loaned, 
used,  converted,  deposited,  or  exchanged,  and  shall  be  fined  in  a 
sum  equal  to  the  amount  of  money  so  embezzled  and  imprisoned 
not  more  than  ten  years." 

§  133.  Failure  of  Officer  to  Render  Accounts,  Etc. — New  Section 
90  reads  as  follows: 

"Sec.  90.  Every  officer  or  agent  of  the  United  States  who, 
having  received  public  money  which  he  is  not  authorized  to  re- 
tain as  salary,  pay,  or  emolument,  fails  to  render  his  accounts 
for  the  same  as  provided  by  law  shall  be  deemed  guilty  of  em- 
bezzlement, and  shall  be  fined  in  a  sum  equal  to  the  amount  of 
money  embezzled  and  imprisoned  not  more  than  ten  years." 

§  134.  Failure  to  Deposit,  as  Required. — Section  91  of  the  New 
Code  reads  as  follows : 

"Sec.  91.  Whoever,  having  money  of  the  United  States  in  his 
possession  or  under  his  control,  shall  fail  to  deposit  it  with  the 
Treasurer,  or  some  assistant  treasurer,  or  some  public  depository 
of  the  United  States,  when  required  so  to  do  by  the  Secretary  of 
the  Treasury,  or  the  head  of  any  other  proper  department,  or  by 
the  accounting  officers  of  the  Treasury,  shall  be  deemed  guilty  of 
embezzlement  thereof,  and  shall  be  fined  in  a  sum  equal  to  the 
amount  of  money  embezzled  and  imprisoned  not  more  than  ten 
years. ' ' 

It  has  been  determined,  in  the  case  of  United  States  vs.  Dim- 
mick,  reported  in  112  Federal,  350,  and  affirmed  in  Dimmick  vs. 
United  States,  121  Federal,  638,  that  to  constitute  the  offense  of 
failing  to  deposit,  as  required,  in  these  sections,  it  is  not  neces- 
sarythat  a  person  having  such  moneys  in  his  possession  should 
have  been  "required"  to  deposit  the  same  by  a  specific  order  di- 
rected to  him  which  he  failed  to  obey,  but  such  requirement  may 
be  made  by  a  general  rule  or  regulation  of  the  Treasury  Depart- 


178  OFFENSES   RELATING    TO   OFFICIAL   DUTIES 

ment,  requiring  such  moneys  to  be  deposited  at  stated  times,  and 
a  wilful  failure  to  comply  with  such  rule  is  within  the  statute. 

So  also,  it  seems  that  a  similar  general  rule  made  by  the  Post- 
master General,  or  any  other  executive  officer,  concerning  the 
deposit  of  moneys  by  subordinates  in  that  particular  branch  of 
the  Government,  would  likewise  be  all  that  was  necessary  to 
meet  the  requirement  of  the  statute  under  the  word  "required." 
§  135.  Provisions  of  the  Five  Preceding  Sections — How  Applied. 
— New  Section  92  reads  as  follows : 

"Sec.  92.  The  provisions  of  the  five  preceding  sections  shall 
be  construed  to  apply  to  all  persons  charged  with  the  safe-keep- 
ing, transfer,  or  disbursement  of  the  public  money,  whether  such 
person  be  indicted  as  receivers  or  depositaries  of  the  same." 

§  136.  Record  Evidence  of  Embezzlement. — New  Section  93  is  in 
the  following  words  : 

' '  Sec.  93.  Upon  the  trial  of  any  indictment  against  any  person 
for  embezzling  public  money  under  any  provision  of  the  six  pre- 
ceding sections,  it  shall  be  sufficient  evidence,  prima  facie,  for  the 
purpose  of  showing  a  balance  against  such  person,  to  produce  a 
transcript  from  the  books  and  proceedings  of  the  Treasury,  as  re- 
quired in  civil  cases,  under  the  provisions  for  the  settlement  of 
accounts  between  the  United  States  and  receivers  of  public 
money. ' ' 

§  137.  Prima  Facie  Evidence. — New  Section  94  is  in  the  fol- 
lowing words : 

"Sec.  94.  The  refusal  of  any  person,  whether  in  or  out  of 
office,  charged  with  the  safe-keeping,  transfer,  or  disbursement  of 
the  public  money  to  pay  any  draft,  order,  or  warrant  drawn  upon 
him  by  the  proper  accounting  officer  of  the  Treasury,  for  any 
public  money  in  his  hands  belonging  to  the  United  States,  no 
matter  in  what  capacity  the  same  may  have  been  received,  or  may 
be  held,  or  to  transfer  or  disburse  any  such  money,  promptly, 
upon  the  legal  requirement  of  any  authorized  officer,  shall  be 
deemed,  upon  the  trial  of  any  indictment  against  such  person  for 
embezzlement,  prima  facie  evidence  of  such  embezzlement." 

§  138.  Evidence  of  Conversion. — Section  95  of  the  New  Code 
is  in  the  following  words: 

"If  any  officer  charged  with  the  disbursement  of  the  public 
moneys  accepts,  receives,  or  transmits  to  the  Treasury  Depart- 
ment to  be  allowed  in  his  favor  any  receipt  or  voucher  from  a 
creditor  of  the  United  States  without  having  paid  to  such  creditor 


OFFENSES   EELATING   TO   OFFICIAL    DUTIES  I79 

in  such  funds  as  the  officer  received  for  disbursement,  or  in  such 
funds  as  he  may  be  authorized  by  law  to  take  in  exchange,  the 
full  amount  specified  in  such  receipt  or  voucher,  every  such  act 
is  an  act  of  conversion  by  such  officer  to  his  own  use  of  the 
amount  specified  in  such  receipt  or  voucher. " 

The  above  three  sections  are  general  statutes  that  apply  to  and 
regulate  the  method  of  proof,  and  create  new  rules  of  evidence 
that  apply  to  Sections  87,  88,  89,  90,  and  91,  above  quoted. 

§  139.  Banker,  Etc.,  Receiving  Deposit  from  Disbursing  Officer. 
— Section  96  of  the  New  Code  is  in  the  following  words : 

"Sec.  96.  Every  banker,  broker,  or  other  person  not  an  au- 
thorized depositary  of  public  moneys,  who  shall  knowingly  receive 
from  any  disbursing  officer,  or  collector  of  internal  revenue,  or 
other  agent  of  the  United  States,  any  public  money  on  deposit,  or 
by  way  of  loan  or  accommodation,  with  or  without  interest,  or 
otherwise  than  in  payment  of  a  debt  against  the  United  States, 
or  shall  use,  transfer,  convert,  appropriate,  or  apply  any  portion 
of  the  public  money  for  any  purpose  not  prescribed  by  law ;  and 
every  president,  cashier,  teller,  director,  or  other  officer  of  any 
bank  or  banking  association  who  shall  violate  any  provision  of 
this  section  is  guilty  of  embezzlement  of  the  public  money  so  de- 
posited, loaned,  transferred,  used,  converted,  appropriated,  or 
applied,  and  shall  be  fined  not  more  than  the  amount  embezzled, 
or  imprisoned  not  more  than  ten  years,  or  both." 

See  Cook  County  National  Bank  vs.  United  States,  107  U.  S.,  445, 
27  Law  Ed.,  page  537,  which  discusses,  in  a  general  way,  the 
])riority  right  of  the  United  States  as  against  insolvents.  See 
also  15  Opinion  of  Attorney  General,  288. 

Under  the  authority  of  United  States  vs.  Green  et  al,  146  Fed- 
eral, 778,  old  Section  5497,  all  the  terms  of  which  are  included  in 
the  statute  under  discussion,  extended  the  crime  of  embezzlement 
of  public  money  to  every  person  who  used,  transferred,  converted, 
appropriated,  or  applied  any  portion  of  the  same  for  any  pur- 
pose not  prescribed  by  law. 

^  140.  Embezzlement  by  Internal  Revenue  Officers,  Etc. — Sec- 
tion 97  of  the  New  Code  is  in  the  following  words : 

"Sec.  97.  Any  officer  connected  with,  or  employed  in,  the  In- 
ternal Revenue  Service  of  the  United  States,  and  any  assistant 
of  such  officer,  who  shall  embezzle  or  wrongfully  convert  to  his 
own  use  any  money  or  other  property  of  the  United  States,  and 
any  officer  of  the  United  States,  or  any  assistant  of  such  officer. 


]80  OFFENSES   RELATING    TO    OFFICIAL    DUTIES 

who  shall  embezzle  or  wrongfully  convert  to  his  owti  use  any 
money  or  property  which  may  have  come  into  his  possession  or 
under  his  control  in  the  execution  of  such  office  or  employment,  or 
under  color  or  claim  of  authority  as  such  officer  or  assistant, 
whether  the  same  shall  be  the  money  or  property  of  the  United 
States  or  of  some  other  person  or  party,  shall,  where  the  offense 
is  not  otherwise  punishable  by  some  statute  of  the  United  States, 
be  fined  not  more  than  the  value  of  the  money  and  property  thus 
embezzled  or  converted,  or  imprisoned  not  more  than  ten  years, 
or  both." 

This  section  contains  a  part  of  what  was  originally  in  Section 
5497  of  the  old  Statutes,  as  does  Section  96,  above  considered. 
By  the  specific  terms  of  the  section,  an  embezzlement  may  be 
properly  laid  thereunder,  even  though  the  money  or  property  so 
embezzled  is  not  the  money  or  property  of  the  United  States,  pro- 
vided that  such  money  or  property  came  into  the  possession  or 
control  of  the  United  States  officer  by  reason  of  his  office,  or  under 
color  thereof,  or  under  claim  of  authority ;  as,  for  instance,  one 
paying  to  a  Deputy  Collector  a  partial  payment  or  installment 
payment  on  a  license  not  yet  issued,  or  giving  to  a  rural  route 
carrier  money  to  purchase  a  money-order,  which  remains  the 
property  of  the  intended  purchaser.  All  these,  and  many  other 
offenses,  would  be  punishable  under  this  statute. 

§  141.  Officer  Contractng^  Beyond  Specific  Appropriation. — Sec- 
tion 98  of  the  New  Code,  which  practically  re-enacts  old  Section 
5503,  and  the  substance  of  the  amendment  thereto,  is  in  the  fol- 
lowing words : 

''Sec.  98.  Whoever,  being  an  oiificer  of  the  United  States,  shall 
knowingly  contract  for  the  erection,  repair,  or  furnishing  of  any 
public  building,  or  for  any  public  improvement,  to  pay  a  larger 
amoimt  than  the  specific  sum  appropriated  for  such  purpose,  shall 
be  fined  not  more  than  two  thousand  dollars  and  imprisoned  not 
more  than  two  years. ' ' 

§  142.  Officer  of  United  States  Court  Failing  to  Deposit  Moneys, 
Etc. — Section  99  of  the  New  Code,  which  substantially  re-enacts 
old  Section  5504,  is  in  the  following  words: 

"Sec.  99.  "Whoever,  being  a  clerk  or  other  officer  of  a  court  of 
the  United  States,  shall  fail  forthwith  to  deposit  any  money  be- 
longing in  the  registry  of  the  court,  or  hereafter  paid  into  court 
or  received  by  the  officers  thereof,  wdth  the  Treasurer,  assistant 
treasurer,  or  a  designated  depositary  of  the  United  States,  in  the 


OFPMONMKH    UKI.ATIN'C    TO    OFFICIAL    DUTfKS  181 

ii.'iiiH-  jiimI  to  I  lie  crvdil,  of  miu'Ii  conrl,,  or  sluill  rcfiiiii  or  convort 
l.o  IiIh  own  iiHc  or  to  \\\c  iimc  of  ;inolli(!r  iiny  kiicIi  money,  is  K'lilly 
of  «'t(il»c/,/,l('rti(!(i1,  find  slinll  he  lined  not,  rnorc^  than  the;  Jiiiiount 
•  •riil»i/,/,|cd,  or  inipriwoncd  not.  more;  Ih.'in  ten  yeJifs,  or  l)olh;  hut 
nolhniK  herein  nIimII  he  hehl  to  preveid,  the  (h'livery  of  any  su(^h 
money  (ipon  Hecnrity,  aceordin^^  to  iii^'reeiiK'id  of  |)arties,  umh^" 
t  h('  direct  ion  of  i\\i\  court.  " 

Some  civil  caHCH  thai  merely  mention  old  Section  ^>^A)\  twr,  \\\i\ 
rollowinK:  Henry  vh.  SovvleH,  'JH  h'cderal,  ISl  ;  llnite<l  Slide's  vs. 
liixhy,  10  liis.,  'ZIW. 

^  1  !.'{.  Receiving  Loan  or  Deposit  from  Ofliocr  of  Court. — Sec- 
tion 100  of  llie  New  Code,  which  talvcs  the  phic<"  of  lh«>  old  Stntuto 
'}',>iV.>,   rc.'ids  !IH   follows  : 

"Sec.  100.  Whoever  shall  Unowiiifj^ly  receiver  from  a,  cNm'U  or 
other  ol'llcri-  of  !i  court  of  the  United  Stales,  as  a  deposit,  lojui,  or 
olherwisc,  Jiiiy  money  hdoufj^in^  in  the  refjjislry  of  such  court,  is 
friiilly  of  cinhc/,/,lcmcnt,  and  sluill  he  punished  as  prescrihed  in 
t  he  |»recedin^  sect  ion 

J^  III.  Failure  to  Make  RrtaniH  or  Reports.  Section  101  of  I  he 
New  ('ode,  which  rccn;i<is  old  Section  17S0,  is  in  the  followin<^ 
words  : 

"Sec.  101.  Mvcry  oliicci-  who  neglects  or  refuses  to  make  any 
return  oi"  report  which  he  is  rcMpiired  to  mako  at  stated  tinuis  by 
any  Ad  af  ('on^i-css  or  re}j;uIation  of  the  Departnieid  of  thc! 
'i^'ousury,  other  tluui  his  accoiuits,  within  the  time  prescrihed  hy 
such  act  oi'  rcf^^ulat  ion,  sh.'dl  he  lined  intt  moi'c  tluui  one  Ihou- 
•sand  doll.'irs.  " 

i^  II.).  Aiding-  in  Trading  in  Obscene  Literature,  Etc.  Old  Sec- 
tion I7S.^,  which  is  to  h(>  rcfrulati'd  hy  the  decisions  uikKm'  th(>  old 
Section  ;{SI).'{  juid  its  .'imendmcnts.  whi<'h  have  heretofore  heen 
treated  nndci-  post;d  crimes  Jind  oll'enses,  is  re|)Iaced  hy  Section 
102  of  lll(>  Ndw  ('ode,  in  lh(>  followini^  words: 

"Sec.  10:V  \Vhocvt>r,  heui^  an  otlicer.  ajjf(>nl.  or  employ(>c  of 
the  (iov(>rnmenl  of  Ihc  Hnilcd  Stales  shall  kuowinjjly  aid  or  abet 
;niy  pci'son  enj^.-i^ed  ui  vioI.Mlin^  any  provision  of  law  |)rohibitin}JC 
importing,  jidvertisiuK.  de.Mliufj:  in,  exhihitiuir.  or  sendiniJC  oi"  re- 
ceiving hy  mail,  obsc(Mu>  or  iiulec(>nl  publiciitions  or  I'cpresenta- 
lions.  oi-  nu'Mus  for  prev(Milin}j:  conc(>ption  or  i>roducint;  abortion, 
or  other  ;irlicl(>  o\'  indec»>nt  or  inunoral  use  or  tendency,  shall  bo 
lined  not  n\orc  th.iu  live  tbousatul  dollars,  or  imprisoned  not  more 
t  h.'ui  ten  vc'irs.  or  both. " 


182  OFFENSES    RELATfNO    TO    OFFICIAL    DUTIES 

§  146.  Collecting  and  Disbursing  Officers  Forbidden  to  Trade  in 
Public  Funds. — Old  Sections  1788  and  1789  are  re-enacted  into 
new  Section  103  in  the  following  words: 

"Sec.  103.  Whoever,  being  an  officer  of  the  United  States 
concerned  in  the  collection  or  the  disbursement  of  the  revenues 
thereof,  shall  carry  on  any  trade  or  business  in  the  funds  or  debts 
of  the  United  States,  or  of  any  State,  or  any  public  property  of 
either,  shall  be  fined  not  more  than  three  thousand  dollars,  or  im- 
prisoned not  more  than  one  year,  or  both,  and  be  removed  from 
office,  and  thereafter  be  incapable  of  holding  any  office  under  the 
United  States." 

§  147.  Judges,  Clerks,  Deputies,  Marshals,  and  Attorneys,  and 
their  Deputies  Forbidden  to  Purchase  Witness  Fees,  Etc. — The 
statute  contained  in  the  29  Statute  at  Large,  595,  is  re-enacted 
into  new  Section  1 04,  in  the  following  words : 

' '  Sec.  104.  Whoever,  being  a  judge,  clerk,  or  deputy  clerk  of 
any  court  of  the  United  States,  or  of  any  Territory  thereof,  or  a 
United  States  district  attorney,  assistant  attorney,  mar- 
shal, deputy  marshal,  commissioner,  or  other  person  hold- 
ing any  office,  or  employment,  or  position  of  trust  or 
profit  under  the  Government  of  the  United  States,  shall, 
either  directly  or  indirectly,  purchase  at  less  than  the  full  face 
value  thereof,  any  claim  against  the  United  States  for  the  fee, 
mileage,  or  expenses  of  any  witness,  juror,  deputy  marshal,  or  any 
other  officer  of  the  court  whatsoever,  shall  be  fined  not  more  than 
one  thousand  dollars." 

§  148.  Falsely  Certifying,  Etc.,  as  to  Record  of  Deeds. — Section 
105  of  the  New  Code,  creates  a  new  offense,  in  the  following 
words : 

' '  Sec.  105.  Whoever,  being  an  officer  or  other  person  author- 
ized by  any  law  of  the  United  States  to  record  a  conveyance  of 
real  property,  or  any  other  instrument  which  by  law  may  be 
recorded,  shall  knowingly  certify  falsely  that  such  conveyance  or 
instrument  has  or  has  not  been  recorded,  shall  be  fined  not  more 
than  one  thousand  dollars,  or  imprisoned  not  more  than  seven 
years,  or  both." 

§  149.  Other  False  Certificates.— Section  106  of  the  New  Code 
creates  a  new  offense  in  the  following  words : 

"See.  106.  Whoever,  being  a  public  officer  or  other  person 
authorized  by  any  law^  of  the  United  States  to  make  or  give  a 
certificate  or  other  writing,  shall  knowingly  make  and  deliver  as 
true  such  a  certificate  or  writing,  containing  any  statement  which 


OFFENSES    RELATING    TO    OFFICIAL    DUTIES  183 

he  knows  to  be  false,  in  a  case  where  the  punishment  thereof  is 
not  elsewhere  expressly  provided  by  law,  shall  be  fined  not  more 
than  five  hundred  dollars,  or  imprisoned  not  more  than  one 
year,  or  both." 

§  150.  Inspector  of  Steamboats  Receiving  Illegal  Fees. — Section 
5482  of  the  old  Statutes  is  re-enacted  in  Section  107  of  the  new 
Statutes  in  the  following  words : 

"Every  inspector  of  steamboats  who,  upon  any  pretense,  re- 
ceives any  fee  or  reward  for  his  services,  except  what  is  allowed  to 
liim  by  law,  shall  forfeit  his  office,  and  be  fined  not  more  than 
five  hundred  dollars,  or  imprisoned  not  more  than  six  months,  or 
both." 

§  151.  Pension  Agent  Taking  Fee,  Etc. — Section  108,  which  dis- 
places old  Section  5487,  reads  as  follows: 

' '  Every  pension  agent,  or  other  person  employed  or  appointed 
by  him,  who  takes,  receives,  or  demands  any  fee  or  reward  from 
any  pensioner  for  any  service  in  connection  with  the  payment  of 
his  pension,  shall  be  fined  not  more  than  five  hundred  dollars." 

In  the  cases  of  United  States  vs.  Kessel,  62  Federal,  page  57, 
and  United  States  vs.  Van  Leuven,  2  Federal,  62,  successful  prose- 
cutions were  laid  by  the  Government  against  members  of  the 
Board  of  Examining  Surgeons  for  receiving  and  asking  outside 
compensation  and  gratuity  for  services  rendered  and  to  be  ren- 
dered, respecting  certain  certificates  from  the  Board  of  Surgeons. 
An  indictment  in  the  first  case,  which  charged  that  the  defendant, 
a  member  of  a  Board  of  Surgeons,  did  unlawfully  ask  "a  gra- 
tuity, the  nature  of  which  is  unknown,"  with  intent  to  have  his 
official  action  influenced,  was  held  to  be  bad,  in  that  it  failed  to 
sufficiently  inform  the  defendant  of  Avhat  he  was  to  meet.  These 
two  decisions  held  that  a  member  of  a  Board  of  Examining  Sur- 
geons, appointed  by  the  Commissioner  of  Pensions,  though  not  an 
officer  of  the  United  States,  was  a  person  acting  for,  or  in  behalf 
of,  the  United  States,  and  in  an  official  capacity,  and  under  au- 
thority of  an  office  of  the  Government,  and  distinguished  the  case 
of  the  United  States  vs.  Germaine,  99  U.  S.,  508. 

§  152.  Officer  not  to  Be  Interested  in  Claims  Against  United 
States. — Section  109  of  the  New  Code  is  substantially  in  the 
words  of  the  old  Statute  5498,  and  reads  as  follows: 

"Sec.  109.     Whoever,  being  an  officer  of  the  United  States,  or 


184  OFFENSES    RELATING    TO    OFFICIAL   DUTIES 

a  person  holding  any  place  of  trust  or  profit,  or  discharging  any 
official  function  under,  or  in  connection  with,  any  Executive  De- 
partment of  the  Government  of  the  United  States,  or  under  the 
Senate  or  House  of  Representatives  of  the  United  States,  shall 
act  as  an  agent  or  attorney  for  prosecuting  any  claim  against  the 
United  States,  or  in  any  manner,  or  by  any  means,  otherwise  than 
in  discharge  of  his  proper  of^cial  duties,  shall  aid  or  assist  in  the 
prosecution  or  support  of  any  such  claim,  or  receive  any  gratuity, 
or  any  share  of  or  interest  in  any  claim  from  any  claimant  against 
the  United  States,  with  intent  to  aid  or  assist,  or  in  consideration 
of  having  aided  or  assisted  in  the  prosecution  of  such  claim,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  imprisoned  not 
more  than  one  year,  or  both." 

To  this  statute,  as  well  as  most  of  the  others  that  we  are  con- 
sidering in  this  Chapter,  the  thought  is  applicable  that  a  political 
ofifice  is  merely  a  trust,  which  is  to  be  conferred  upon  whatever 
conditions  the  Government  chooses  to  impose.  If  the  conditions 
are  unacceptable  to  the  office-holder,  he  is  under  no  obligation  to 
take  the  office,  and  he  has  no  Constitutional  or  other  right  to  re- 
quire the  conditions  of  the  trusts  he  accepts  to  be  subsequently 
altered  or  removed.  In  United  States  vs.  Curtis,  12  Federal,  824, 
the  Court,  in  expressing  this  thought,  said : 

"No  citizen  is  required  to  hold  a  public  office,  and  if  he  is  un- 
willing to  do  so,  upon  such  conditions  as  are  prescribed  by  that 
Department  of  the  Government  which  creates  the  office,  fixes  its 
tenure  and  incidents,  it  is  his  duty  to  resign." 

The  Curtis  case  w-as  an  indictment,  in  1882,  against  a  Federal 
employee  for  soliciting  and  receiving  money  from  other  Federal 
employees,  to  be  used  by  the  Republican  State  Committee.  The 
indictment  "was  found  under  Section  6  of  the  Act  of  August  15, 
1876,  First  Supplement,  245,  19  Statute-at-Large,  169.  The  de- 
fendant was  convicted,  and  thereafter  sought,  by  writ  of  habeas 
corpus  from  the  Supreme  Court  of  the  United  States,  his  dis- 
charge ;  but  the  Supreme  Court,  through  Chief  Justice  Waite,  in 
106  U.  S.,  371,  ex  parte  Curtis;  Lawyers'  Co-Operative  Edition, 
Book  27,  page  232,  refused  to  discharge  the  petitioner,  and  in  ef- 
fect, therefore,  confirmed  the  conviction. 

§  153.  Member  of  Congress,  Etc.,  Soliciting  or  Accepting  Bribe. 
— Sections  1781,  5500,  and  5502  have  contributed  to  new  Section 
110,  which  is  in  the  following  w^ords : 


OFFENSES    RELATING    TO    OFFICIAL    DUTIES  185 

"Sec.  110.  Whoever,  being  elected  or  appointed  a  Member  of 
or  Delegate  to  Congress,  or  a  Resident  Commissioner,  shall,  after 
his  election  or  appointment,  and  either  before  or  after  he  has  qual- 
ified, and  during  his  continuance  in  office,  directly  or  indirectly, 
ask,  accept,  receive,  or  agree  to  receive,  any  money,  property,  or 
other  valuable  consideration,  or  any  promise,  contract,  undertak- 
ing, obligation,  gratuity,  or  security  for  the  payment  of  money, 
or  for  the  delivery  or  conveyance  of  anything  of  value  to  him,  or 
to  any  person  with  his  consent,  connivance,  or  concurrence,  for 
his  attention  to,  or  services,  or  with  the  intent  to  have  his  action, 
vote,  or  decision  influenced  on  any  question,  matter,  cause,  or  pro- 
ceeding, which  may  at  any  time  be  pending  in  either  House  of 
Congress  or  before  any  committee  thereof,  or  which  by  law  or 
under  the  Constitution  may  be  brought  before  him  in  his  official 
capacity,  or  in  his  place  as  such  member,  delegate,  or  resident 
commissioner,  shall  be  fined  not  more  than  three  times  the  amount 
asked,  accepted,  or  received,  and  imprisoned  not  more  than  three 
years;  and  shall,  moreover,  forfeit  his  office  or  place,  and  there- 
after be  forever  disqualified  from  holding  any  office  of  honor, 
trust,  or  profit,  under  the  Government  of  the  United  States." 

§  154.  Offering,  Etc.,  Member  of  Congress  Bribe. — New  Section 
111  contains  the  meat  of  old  Section  5450,  and  is  in  the  following 
words : 

"Sec.  111.  Whoever  shall  promise,  offer,  or  give,  or  cause  to 
be  promised,  offered,  or  given,  any  money  or  other  thing  of  value, 
or  shall  make  or  tender  any  contract,  undertaking,  obligation, 
gratuity,  or  security  for  the  payment  of  money  or  for  the  delivery 
or  conveyance  of  anything  of  value,  to  any  Member  of  either 
House  of  Congress,  or  Delegate  to  Congress,  or  Resident  Commis- 
sioner, after  his  election  or  appointment,  and  either  before  or 
after  he  has  qualified,  and  during  his  continuance  in  office,  or  to 
any  person  with  his  consent,  connivance,  or  concurrence,  with 
intent  to  influence  his  action,  vote,  or  decision,  on  any  question, 
matter,  cause,  or  proceeding  wiiich  may  at  any  time  be  pending 
in  either  House  of  Congress,  or  before  any  committee  thereof,  or 
which  by  law  or  under  the  Constitution  may  be  brought  before 
him  in  his  official  capacity  or  in  his  place  as  such  member,  dele- 
gate, or  resident  commissioner,  shall  be  fined  not  more  than  three 
times  the  amount  of  money  or  value  of  the  thing  so  promised,  of- 
fered, given,  made,  or  tendered,  and  imprisoned  not  more  than 
three  years." 

§  155.  Member  of  Congress  Taking  Consideration  for  Procuring 
Contracts,  Offices,  Etc. ;  Offering  Member  Consideration,  Etc. — New 


]86  OFFENSES    RELATING    TO    OFFICIAL    DUTIES 

Section  110,  quoted  above,  together  with  new  Section  112,  which 
is  in  the  following  words : 

"Sec.  112.  Whoever,  being  elected  or  appointed  a  ]\Icniber  of 
or  Delegate  to  Congress,  or  a  Resident  Commissioner,  shall,  after 
his  election  or  appointment,  and  either  before  or  after  he  has  qual- 
ified and  during  his  continuance  in  office,  or  being  an  officer  or 
agent  of  the  United  States,  shall  directly  or  indirectly  take,  re- 
ceive, or  agree  to  receive,  from  any  person,  any  money,  property, 
or  other  valuable  consideration  whatever,  for  procuring  or  aiding 
to  procure  any  contract,  appointive  office,  or  place  to  any  person 
whomsoever;  or  whoever,  directly  or  indirectly  shall  offer,  or 
agree  to  give,  or  shall  give,  or  bestow,  any  money,  property,  or 
other  valuable  consideration  whatever,  for  the  procuring,  or  aid- 
ing to  procure,  any  such  contract,  appointive  office,  or  place,  shall 
be  fined  not  more  than  ten  thousand  dollars  and  imprisoned  not 
more  than  two  years;  and  shall,  moreover,  be  disqualified  from 
holding  any  office  of  honor,  profit,  or  trust  under  the  Government 
of  the  United  States.  Any  such  contract  or  agreement  may,  at 
the  option  of  the  President,  be  declared  void," 

enlarge  upon  the  provisions  of  old  Statute  1781. 

Upon  the  question  of  policy,  the  Curtis  case,  cited  supra,  may 
be  considered  as  an  authority  under  this  section.  In  United 
States  vs.  Driggs,  125  Federal,  520,  Congressman  Driggs  was  in- 
dicted for  assisting  a  contractor  by  the  name  of  Miller  in  making 
a  contract  with  the  Government  for  certain  automatic  cash  regis- 
ters, for  a  consideration  of  twelve  thousand  dollars.  In  the  case 
of  United  States  -^s.  Dietrich,  126  Federal,  676,  which  grew  out  of 
an  indictment  against  Senator  Dietrich,  of  Nebraska,  for  an  al- 
leged agreement  to  procure,  or  aid  in  the  securing  of,  a  post- 
office,  for  one  Fisher,  the  Court  held,  of  course,  that  it  was  neces- 
sary to  allege  in  the  indictment  the  election,  qualification,  and 
oath  of  Dietrich  as  such  Senator,  and  for  the  facts  to  show  that 
the  offense  was  committed  while  he  was  such  officer;  and  there 
being  an  interim  before  his  actual  qualification  to  such  office,  dur- 
ing which  time  he  made  the  contract  for  the  disposition  of  the 
post-office,  if  he  made  it  at  all,  the  Court  determined  that  no  of- 
fense was  committed.    In  that  opinion,  the  Court  said: 

* '  The  defendant  was  not  admitted  to  a  seat  in  the  Senate,  and 
did  not  enter  upon  the  discharge  of  the  duties  of  that  office,  until 
December  2,  1901,  not  until  t'lat  date  did  the  Senate  consider  or 
act  upon  his  election,  credentials,  and  qualifications.    Until  then, 


OFFENSES    RELATING    TO    OFFICIAL    DUTIES  187 

it  was  not  known,  and  could  not  have  been,  in  the  absence  of  an 
earlier  session  of  the  Senate,  whether  his  election,  credentials,  and 
qualifications,  would  be  deemed  by  the  Senate,  the  sole  and  ex- 
clusive judge,  to  be  such  as  to  entitle  him  to  membership  in  that 
body.  Immediately  following  the  favorable  action  of  the  Senate 
upon  his  election,  credentials,  and  qualifieations,  the  defendant 
took  the  oath  of  office  as  a  Senator,  which  w^as  an  assumption  of 
the  duties  of  that  office ;  but  imtil  then  he  had  not  accepted  the 
office,  and  was  not  obligated  to  its  acceptance.  Until  then,  it  was 
optional  with  him  to  accept  or  decline;  and  if,  on  December  2, 
1901,  he  had  exercised  that  office  by  declining  instead  of  accept- 
ing, he  would  not  have  been  a  Senator  at  all,  under  the  election 
of  March  28,  1901." 

It  is  quite  true  that  the  Commoii  Law  made  it  an  offense  for 
one  not  to  accept  an  office  to  Avhich  he  was  elected,  but  no  such 
jurisdiction  is  recognized  by  the  Federal  Courts.  If  it  be  true, 
therefore,  that  Dietrich  agreed  to  sell  the  office  betw^een  the  date 
of  his  election,  in  March,  and  the  date  of  his  qualification,  in  De- 
cember, he  committed  no  offense  imder  the  Statute  imder  discus- 
sion. The  case  of  United  States  vs.  Burton,  reported  in  131  Fed- 
eral, 552,  grew  out  of  an  alleged  practice  by  Senator  Burton  be- 
fore the  Post-office  Department  of  the  United  States,  with  refer- 
ence to  a  certain  fraud  order  that  the  Postmaster  General  had 
issued.  The  conviction  that  resulted  upon  that  case  was  finally 
reversed.  Burton  vs.  United  States,  196  U.  S.,  283,  but  upon  a  re- 
trial another  conviction  was  affirmed.  United  States  vs.  Burton, 
202  U.  S.,  344;  50  Law  Ed.,  1057.  The  Court  held,  in  the  last 
w'rit  of  error,  that  a  fraud  order  inquiry  pending  before  the  Post- 
office  Department  is  a  proceeding  in  which  the  United  States,  al- 
though having  no  direct  money  or  pecimiary  interest  in  the  result, 
is  directly  or  indirectly  interested  within  the  meaning  of  Section 
1782,  making  it  a  misdemeanor  for  a  United  States  Senator  to  re- 
ceive or  agree  to  receive  compensation  for  services  rendered  be- 
fore any  Department,  in  relation  to  any  proceeding  in  which  the 
United  States  is  so  interested. 

The  Court  also  in  that  case  said  that  the  agreement  to  receive, 
and  the  receipt  of ,  the  forbidden  compensation  are  made  two  sep- 
arate and  distinct  offenses  under  Section  1782. 

In  the  case  of  McGregor  vs.  United  States,  134  U.  S.,  188,  the 
Circuit  Court  of  Appeals  for  the  Fourth  Circuit  affirmed  a  con- 


188  OFFENSES    RELATING    TO    OFFICIAL    DUTIES 

viction  of  the  defendants,  who  were  clerks  in  the  Post-office  De- 
partment, under  Sections  1781  and  1782,  for  conspiring  with  a 
dealer  in  leather  goods  for  the  sale  of  mail  pouches  to  the  Federal 
Government. 

This  case  discusses  the  introduction  of  evidence  before  a  grand 
jury,  the  joinder  of  various  counts,  and  the  sufficiency  in  general 
of  a  bill  alleging  the  elements  of  such  an  offense.  The  Court  re- 
fused to  revise  the  judgment  of  the  grand  jury,  stating  that, 

"It  is  doubtless  true  that  grand  juries  frequently  consider  tes- 
timony that  would  be  held  inadmissible  by  a  trial  court,  for  such 
juries  are  not  usually  well  informed  concerning  the  rules  of  evi- 
dence, nor  the  rights  and  privileges  of  the  parties  whose  alleged 

offenses  they  are  examining  into In  cases  like  this,  where 

the  record  discloses  that  many  witnesses  were  examined,  and 
much  documentary  evidence  considered  by  the  grand  jury,  it  is 
quite  apparent  that  it  would  be  subversive  of  our  criminal  pro- 
cedure and  destructive  of  the  rules  formulated  to  promote  the 
due  administration  of  justice,  to  establish  a  practice  under  which 
indictments  might  be  quashed,  because  of  a  consideration  by  the. 
grand  jury  of  the  improper  testimony  given  by  one  witness 
among  many,  or  the  reading  by  such  jury  of  a  statement  irreg- 
ularly submitted  to  it,  which  may  likely  have  had  but  little  influ- 
ence in  the  conclusion  reached  by  the  jury." 

In  other  words,  the  Court  said  later  on,  that  even  though  evi- 
dence might  have  been  improperly  considered  by  the  grand  jury, 
that  the  Court  would  not  say  that  the  jury  did  not,  nevertheless, 
have  before  it  sufficient  of  legal  and  pertinent  testimony  to  war- 
rant the  returning  of  the  indictment,  and  cites  cases  in  support. 

In  United  States  vs.  Booth,  148  Federal,  112,  wdll  be  found  a 
complete  copy  of  an  indictment  under  Section  1782,  which  was 
approved  by  the  Court.  In  that  case,  a  Receiver  of  the  Land  De- 
partment of  the  United  States  was  held  to  commit  an  offense 
against  the  statute  under  discussion,  when  he  gave  advance  in- 
formation respecting  the  lands,  for  which  advance  information 
he  received  compensation,  and  the  Court  held  that  the  United 
States  has  a  direct  interest,  within  the  meaning  of  the  section,  in 
all  public  lands,  and  in  the  right  of  entry  or  purchase  thereof, 
through  proceedings  to  be  had  at  any  of  its  land  offices.  Under 
the  reasoning  of  this  last  case,  any  compensation  whatever  is  eon- 


OFFENSES    EELATING    TO    OFFICIAL    DUTIES  189 

strued  to  be  a  violation  of  the  statute.  It  will  be  remembered, 
however,  that  the  distinction  drawn  in  the  Dietrich  case,  with 
reference  to  election  and  qualification,  can  never  arise  under  new 
Sections  112  and  113,  for  the  reason  that  those  sections  expressly 
provide  either  before  or  after  qualification. 

§  156.  Member  of  Congress  Taking  Compensation  in  Matters  to 
Which  the  United  States  Is  a  Party. — New  Section  113,  which  is 
closely  akin  to  112,  just  discussed,  and  which  re-enacts  the  salient 
features  of  old  Section  1782,  and  under  which  the  citations  and 
suggestions  made  with  reference  to  112  are  also  applicable,  is  in 
the  following  words : 

"Sec.  113.  Whoever,  being  elected  or  appointed  a  Senator, 
Member  of  or  Delegate  to  Congress,  or  a  Resident  Commissioner, 
shall,  after  his  election  or  appointment  and  either  before  or  after 
he  has  qualified,  and  during  his  continuance  in  office,  or  being 
the  head  of  a  department,  or  other  officer  or  clerk  in  the  employ 
of  the  United  States,  shall,  directly  or  indirectly,  receive,  or 
agree  to  receive,  any  compensation  whatever,  for  any  services 
rendered  or  to  be  rendered  to  any  person,  either  by  himself  or 
another,  in  relation  to  any  proceeding,  contract,  claim,  contro- 
versy, charge,  accusation,  arrest,  or  other  matter  or  thing  in 
which  the  United  States  is  a  party  or  directly  or  indirectly  in- 
terested, before  any  department,  court-martial,  bureau,  officer, 
or  any  civil,  military,  or  naval  commission  whatever,  shall  be 
fined  not  more  than  ten  thouasnd  dollars  and  imprisoned  not 
more  than  two  years ;  and  shall,  moreover,  thereafter  be  incapable 
of  holding  any  office  of  honor,  trust,  or  profit  under  the  Govern- 
ment of  the  United  States." 

§  157.  Member  of  Congress  Not  to  be  Interested  in  Contract. — 
Sections  109,  110.  111.  112,  and  113,  provide,  in  various  ways, 
for  the  conservation  of  official  fidelity.  To  these,  has  been  added 
new  Section  114,  which  takes  the  place  of  old  Section  3739.  and 
which  is  in  the  following  words: 

"Sec.  114.  AVhoever,  being  elected  or  appointed  a  Member  of 
or  Delegate  to  Congress,  or  a  Resident  Commissioner,  shall,  after 
his  election  or  appointment  and  either  before  or  after  he  has 
qualified,  and  during  his  continuance  in  office,  directly  or  indi- 
rectly, himself,  or  by  any  other  person  in  trust  for  him,  or  for 
his  use  or  benefit,  or  on  his  aceoimt,  undertake,  execute,  hold,  or 
enjoy,  in  whole  or  in  part,  any  contract  or  agreement  made  or 
entered  into  in  behalf  of  the  United  States  by  any  officer  or  per- 
son authorized  to  make  contracts  on  its  behalf,  shall  be  fined  not 


190  OFFENSES    KELATINC    TO    OFFICIAL    DUTIES 

more  than  three  thousand  doUars.  All  contracts  or  agreements 
made  in  violation  of  this  section  shall  he  void;  and  whenever  any 
sum  of  money  is  advanced  hy  the  United  States,  in  consideration 
of  any  such  contract  or  agreement,  it  shall  forthwith  be  repaid; 
and  in  case  of  failure  or  refusal  to  pay  the  same  when  demanded 
by  the  proper  officer  of  the  Department  under  whose  authority 
such  contract  or  agreement  shall  liave  been  made  or  entered  into, 
suit  shall  at  once  be  i)rought  against  the  person  so  failing  or  re- 
fusing and  his  sureties,  for  the  recovery  of  the  money  so  ad- 
vanced." 

The  case  of  the  Tnited  States  vs.  Dietrich.  12f)  Federal.  G71. 
cited  supra  under  ]12  and  118.  may  be  read  with  interest 
by  those  seeking  light  upon  the  instant  statute;  also  Second  At- 
torney's General  Opinion.  697.  15  Attorney's  General  Opinion. 
280.  This  statute,  it  will  be  noticed,  is  directed  against  Members 
of  Congress  being  interested  in  contracts  with  the  Government, 
whatever  such  interest  may  be.  whether  direct  or  indirect,  and 
whether  before  qualification  or  after  qualification,  which  meets. 
as  heretofore  observed,  the  objections  that  were  raised  by  the 
Court  in  the  Dietrich  case,  to  a  successful  prosecution. 

§  158.  Officer  Making  Contract  with  Member  of  Congress.— Old 
Section  3742  becomes  new  Section  115,  which  is  in  the  follow- 
ing words: 

"Sec.  115.  "Whoever,  being  an  officer  of  the  United  States, 
shall  on  behalf  of  the  Ignited  States,  directly  or  indirectly  make 
or  enter  into  any  contract,  bargain,  or  agreement,  in  writing  or 
otherwise,  with  any  ^Member  of  or  Delegate  to  Congress,  or  any 
Resident  Commissioner,  after  his  election  or  appointment  as 
such  member,  delegate,  or  resident  commissioner,  and  either  be- 
fore or  after  he  has  qualified,  and  during  his  continuance  in 
office,  shall  be  fined  not  more  than  three  thousand  dollars." 

This  section,  as  the  other  sections  of  the  New  Code  bearing 
upon  this  phase  of  official  wrong,  is  so  worded  as  to  punish  the 
offender,  whether  before  or  after  his  qualification  to  office. 

§  159.  Contracts  to  Which  the  Two  Preceding  Sections  Do  Not 
Apply. — By  Section  116  of  the  New  Code,  which  was  Section 
3740  of  the  Old  Code,  the  two  preceding  sections. — that  is.  Sec- 
tions 114  and  115, — do  not  apply  to  certain  contracts,  as  is 
shown  by  the  following  words : 

"Sec.  116.     Nothing  contained  in  the  two  preceding  sections 


OFFENSES    RELATING    TO    OFFICIAL    DUTIES  191 

shall  extend,  or  be  construed  to  extend,  to  any  contract  of  agree- 
ment made  or  entered  into,  or  accepted,  by  any  incorporated 
company,  where  such  contract  or  agreement  is  made  for  the 
general  benefit  of  such  incorporation  or  company ;  nor  to  the 
purchase  or  sale  of  bills  of  exchange  or  other  property  by  any 
Member  of  or  Delegate  to  Congress,  or  Resident  Commissioner, 
where  the  same  are  ready  for  delivery,  and  payment  therefor  is 
made  at  the  time  of  making  or  entering  into  the  contract  or 
agreement." 

§  160.  TJnited  States  Officer  Accepting  Bribe. — In  the  discussion 
of  Section  110,  supra,  cases  were  cited  and  suggestions  were  made 
concerning  old  Sections  5501  and  5502.  These  two  sections  are 
broadly  re-enacted  in  new  Section  117,  which  is  in  the  following 
words : 

""Whoever,  being  an  officer  of  the  United  States,  or  a  person 
acting  for  or  on  behalf  of  the  United  States,  in  any  official 
capacity,  under  or  by  virtue  of  the  authority  of  any  department 
or  office  of  the  Government  thereof ;  or  whoever,  being  an  officer 
or  person  acting  for  or  on  behalf  of  either  House  of  Congress, 
or  of  any  committee  of  either  House,  or  of  both  Houses,  shall  ask, 
accept,  or  receive  anj^  security  for  the  payment  of  money,  or  for 
the  delivery  or  conveyance  of  anything  of  value  with  intent  to 
have  his  decision  or  action  on  any  question,  matter,  cause,  or 
proceeding  which  may  at  any  time  be  pending,  or  which  may  by 
law  be  brought  before  him  in  his  official  capacity,  or  in  his 
place  of  trust  or  profit,  influenced  thereby,  shall  be  fined  not 
more  than  three  times  the  amount  of  money  or  value  of  the  thing 
so  asked,  accepted,  or  received,  and  imprisoned  not  more  than 
three  years,  and  shall,  moreover,  forfeit  his  office  or  place  and 
thereafter  be  forever  disqualified  from  holding  any  office  of 
honor,  trust,  or  profit  under  the  Government  of  the  United 
States." 

The  cases  of  the  United  States  vs.  Kissel,  62  Federal,  57,  and 
United  States  vs.  Van  Lauven,  62  Federal,  62,  heretofore  dis- 
cussed under  Section  110,  are  authorities  under  this  section. 
The  statute  is  so  broad  that  it  covers  not  only  one  who  is  an 
officer  of  the  United  States,  but  any  person  acting  for  or  on  be- 
half of  the  United  States  in  any  official  capacity. 

The  case  of  United  States  vs.  Boyer,  85  Federal,  425,  correctly, 
it  seems,  announces  a  doctrine  that  would  be  equally  applicable 
to  the  new  Section :  that  is,  that  though  one  be  a  United  States 
officer,  if  he  be  attempting  to  perform  a  function  which  under 


1()2  OFFENSES    RELATING    TO    OFFICIAL    DUTIES 

the  laws  and  limitations  of  the  United  States,  he  is  not  entitled  to 
perform,  even  though  he  may  think  that  he  has  such  duty,  and 
even  though  the  person  offer  him  a  gratuity  not  to  perform  such 
duty  may  think  that  he  has  a  right  to  perform  it,  yet  he  would 
not  be  guilty  under  the  section,  for  the  reason  that  he  was  acting 
outside  of  his  authority.  In  the  Boyer  case,  an  Inspector  for 
the  Agriculture  Department  of  the  United  States  was  indicted 
for  receiving  money  from  the  packing  house  to  which  he  was  as- 
signed, as  an  Inspector  of  the  Bureau  of  Animal  Industry.  The 
point  was  raised  that  Congress  did  not  have  the  power,  under 
the  Constitution,  to  send  an  inspector  into  a  packing  house  lo- 
cated within  a  State,  and  impose  upon  him  the  duties  set  out 
in  the  indictment.  The  Court  held  that  the  facts  set  out  in  the 
indictment  did  not  constitute  an  offense  against  the  United 
States,  for  the  reason  that  it  was  intended  to  induce  him  not  to 
do  a  thing  which  no  valid  law  of  Congress  imposed  upon  him 
to  do. 

In  the  case  of  United  States  vs.  Ingham,  97  Federal,  935, 
which  was  a  prosecution  under  Section  5451  of  the  old  Statutes, 
which  is  closely  akin  to  the  one  under  discussion,  the  Court  held 
that  the  statute  applied  to  any  person  acting  for  or  on  behalf 
of  the  United  States,  whether  such  person  was  an  officer  or  not ; 
and,  therefore,  applied  the  section  to  a  Secret  Service  operative 
employed  by  the  Secretary  of  the  Treasury,  holding  that  the 
bribery  or  attempted  bribery  of  such  a  person  to  collude  in  or 
allow  a  fraud  on  the  United  States,  was  an  offense  within  the 
terms  of  the  statute. 

In  King  vs.  United  States,  112  Federal,  is  a  state  of  facts 
which  showed  an  offense  luider  Section  5501  of  the  old  Statutes, 
in  the  receiving  of  a  large  sum  of  money  by  a  Captain  in  the 
Ignited  States  Quartermaster's  Department,  for  the  acceptance 
and  rejection  of  material  to  be  used  in  the  construction  of  a 
public  building,  such  payment  having  been  made  him  by  the 
Contractor.  The  Circuit  Court  of  Appeals  for  the  Fifth  Cir- 
cuit sustains  a  conviction  under  such  facts,  but  reverses  the  case 
upon  another  question.  In  the  opinion  is  a  copy  of  the  indict- 
ment. 

An  indictment  under  these  sections  should  charge  that  the 


OFFENSES    RELATING    TO    OFFICIAL    DUTIES  193 

bribe  was  given  with  the  intent  to  influence  the  official  action  of 
the  person.  An  indictment  should  also  clearly  specify  the  offi- 
cial capacity  of  the  person  who  has  accepted  the  bribe,  or  to 
whom  an  attempt  has  been  made  to  give  a  bribe.  It  was  said, 
however,  in  the  King  case,  that  after  verdict,  a  general  allegation 
which  seems  to  show  capacity  of  supervision  over  a  particular 
Governmental  function  would  be  sufficient. 

In  the  case  of  Sharp  against  the  United  States,  138  Federal, 
878,  the  Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  while 
reversing  the  ease  upon  another  question,  held  that  an  indictment 
against  a  United  States  Indian  Agent  for  bribery,  which  al- 
leged that  he,  having  charge  of  the  execution  and  completion  of 
certain  leases  for  certain  contracts  of  land  in  a  specified  Indian 
reservation,  commonly  kno^^Ti  as  the  Ponca  Pasture,  etc.,  felon- 
iously and  corruptly  accepted  and  received  the  sum  of  fifteen 
hundred  dollars  from  one  A.,  for  the  purpose  of  influencing  his 
action  on  the  completion  of  such  leases,  was  sufficient  to  charge 
the  offense  luider  5501.  The  case  also  directly  holds  that  an 
Indian  Agent,  in  the  execution  and  completion  of  leases  of  Gov- 
ernment lands,  was  charged  with  such  an  official  trust  that  his 
receiving  a  bribe  to  influence  his  official  action  rendered  him  sub- 
ject to  punishment  under  the  above  section. 

The  case  of  United  States  vs.  Haas,  163  Federal,  908,  was  an 
indictment  under  the  old  Conspiracy  Statute,  for  a  violation  of 
the  old  bribery  section,  which  was  5451,  and  is  interesting  in 
this  connection,  because  in  that  case  the  Court  held  that  a  person 
employed  by  the  United  States  as  an  Assistant  Statistician  in  the 
Department  of  Agriculture,  in  the  performance  of  the  duties 
wdth  which  he  is  charged  by  the  rules  of  the  Department,  acts 
for  the  United  States  in  an  official  function  within  the  meaning  of 
Revised  Statutes  No.  5451,  making  it  a  criminal  offense  to  bribe 
any  such  person,  to  induce  him  to  do  or  to  omit  to  do  any  act  in 
violation  of  his  lawful  duty. 

§  161.  Political  Contributions  Not  to  be  Solicited  by  Certain  Of- 
ficers.— Section  118  of  the  New  Code  reads  as  follows: 

"Sec.  118.  No  Senator  or  Representative  in,  or  Delegate  or 
Resident  Commissioner  to  Congress,  or  Senator,  Representative, 
Delegate,  or  Resident  Commissioner-elect,  or  officer  or  employee 


]94  OFFENSES    RELATING    TO    OFFICIAL    DUTIES 

of  either  House  of  Congress,  and  no  executive,  judicial,  military 
or  naval  officer  of  the  United  States,  and  no  clerk  or  employee  of 
any  Department,  branch,  or  bureau  of  the  executive,  judicial,  or 
military  or  naval  service  of  the  United  States,  shall,  directly  or 
indirectly,  solicit  or  receive,  or  be  in  any  manner  concerned  in 
soliciting  or  receiving,  any  assessment,  subscription,  or  contribu- 
tion for  any  political  purpose  whatever,  from  any  officer,  clerk, 
or  employee  of  the  United  States,  or  any  Department,  branch,  or 
bureau  thereof,  or  from  any  person  receiving  any  salary  or 
compensation  from  moneys  derived  from  the  Treasury  of  the 
United  States." 

§  162.  Political  Contributions  Not  to  be  Received  in  Public  Of- 
fices.— Section  119  of  the  New  Code  reads  as  follows: 

"Sec.  119.  No  person  shall,  in  any  room  or  building  occu- 
pied in  the  discharge  of  official  duties  by  any  officer  or  employee 
of  the  United  States  mentioned  in  the  preceding  section,  or  in 
any  navy-yard,  fort,  or  arsenal,  solicit  in  any  manner  whatever 
or  receive  any  contribution  of  money  or  other  thing  of  value  for 
any  political  purpose  whatever." 

§  163.  Immunity  from  Official  Proscription,  Etc. — Section  120 

is  in  the  following  words : 

"Sec.  120.  No  officer  or  employee  of  the  United  States  men- 
tioned in  section  one  hundred  and  eighteen,  shall  discharge,  or 
promote,  or  degrade,  or  in  any  manner  change  the  official  rank 
or  compensation  of  any  other  officer  or  employee,  or  promise  or 
threaten  so  to  do,  for  giving  or  withholding  or  neglecting  to 
make  any  contribution  of  money  or  other  valuable  thing  for  any 
political  purpose." 

§  164.  Giving  Money,  Etc.,  to  Officials  for  Political  Purposes 
Prohibited. — -Section  121  of  the  New  Code  is  as  follows : 

"Sec.  121.  No  officer,  clerk,  or  other  person  in  the  service 
of  the  United  States  shall,  directly  or  indirectly,  give  or  hand 
over  to  any  other  officer,  clerk,  or  person  in  the  service  of  the 
United  States,  or  to  any  Senator  or  Member  of  or  Delegate  to 
Congress,  or  Resident  Commissioner,  any  money  or  other  val- 
uable thing  on  account  of  or  to  be  applied  to  the  promotion  of 
any  political  object  whatever." 

§  165.  Penalty  for  Violating  the  Provisions  of  the  Four  Pre- 
ceding Sections. — Section  122  is  in  the  follo-\\ing  words: 

"Sec.  122.  Whoever  shall  violate  any  provision  of  the  four 
preceding  sections  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  three  years,  or  both. ' ' 


OFFENSES    RELATING    TO    OFFICIAL    DUTIES  195 

The  above  sections  are  taken  from  the  First  Volume  of  the 
Supplements,  396,  and  were  what  was  originally  known  as  the 
Civil  Service  Act.  The  case  of  the  Ignited  States  vs.  Thayer,  in 
154  Federal,  508,  originated  on  that  portion  of  the  original  law 
which  is  now  Section  119,  above  quoted,  and  was  a  prosecution 
based  upon  the  sending  of  letters  by  mail  to  the  Federal  em- 
ployees, soliciting  political  contributions  for  use  by  the  Repub- 
lican State  Committee,  such  letters  to  be  delivered  to  such  Fed- 
oral  employee  in  the  Federal  building  at  Dallas,  Texas.  The 
lower  Court  held  that  the  sending  of  such  a  letter  addressed  to 
an  Internal  Revenue  employee  at  his  office  in  the  Federal  Build- 
ing, by  a  defendant  who  w^as  neither  an  officer  nor  an  employee 
of  the  United  States,  did  not  constitute  an  offense  within  the  Act. 
The  Government  sued  out  a  writ  of  error  under  the  new  statute, 
auhorizing  the  United  States  to  go  direct  to  the  Supreme  Court 
of  the  United  States  under  certain  conditions,  and  the  Supreme 
Court  of  the  United  States  reversed  the  judgment  of  the  lower 
Court,  and  held  that, 

"solicitation  by  letter,  iiitended  to  be  received  and  read  by  an 
Internal  Revenue  employee  in  the  Post-office  Building,  and 
which  was  so  received  and  read  in  such  building,  is  embraced 
by  the  provision  of  the  Civil  Service  Act  now  imder  discussion, 
that  no  person  shall  in  any  room  or  building  occupied  in  the  dis- 
charge of  official  duties  by  any  officer  or  employee  of  the  United 
States  mentioned  in  such  Act,  solicit  'in  any  manner  whatever' 
or  receive  any  contribution  of  money  or  any  other  thing  of  value, 
for  any  political  purpose  whatever." 

In  the  course  of  the  opinion,  the  Court  says: 

"The  solicitation  was  made  at  sometime,  somewhere.  The 
time  determines  the  place;  jt  was  not  completed  when  the  letter 
was  dropped  into  the  post.  If  the  letter  had  miscarried  or  been 
burned,  the  defendant  would  not  have  accomplished  the  solicita- 
tion. The  Court  below  was  misled  by  cases  in  which,  upon  an 
indictment  for  obtaining  money  by  false  pretenses,  the  crime 
was  held  to  have  been  committed  at  the  place  where  drafts  were 
put  into  the  post  by  a  defrauding  person,  but  these  stand  on  the 
analogy  of  the  acceptance  by  mail  of  an  offer,  and  throw  no  light. 

Therefore,  we  repeat,  until  after  the  letter  had  entered 

the  building,  the  offense  was  not  completed,  but  when  it  had  been 
read.  The  case  was  not  affected  by  the  nature  of  the  intended 
means  by  which  it  was  put  into  the  hands  of  the  person  ad- 


IDO  OFFENSES    RELATING    TU    OFFICIAL    DUTIES 

dressed.  Neither  can  the  case  be  affected  by  speculation  as  to 
what  the  position  would  have  been  if  the  receiver  had  put  the 
letter  in  his  pocket  and  had  read  it  later,  at  home.  Offenses 
usually  depend  for  their  completion  upon  events  that  are  not 
wholly  within  the  offender's  control,  and  that  may  turn  out  in 
different  ways." 

In  the  case  of  United  States  vs.  Smith,  163  Federal,  926,  Dis- 
trict Judge  Jones  held  that  the  personal  delivery  to  a  postmaster, 
in  his  office,  of  a  sealed  letter  containing  a  request  for  a  contri- 
bution for  a  political  campaign  constitutes  a  criminal  offense 
under  the  Act  under  discussion. 

§  167.  Government  Officer,  Etc.,  Giving  Out  Advance  Informa- 
tion Respecting  Crop  Reports. — The  New  Code,  at  Section  123, 
contains  an  entirely  new  statute,  which  is  the  fruit  of  stock  ex- 
changes and  the  alternate  rage  of  the  American  bull  and  bear, 
and  is  in  the  following  words: 

"Whoever,  being  an  officer  or  employee  of  the  United  States 
or  a  person  acting  for  or  on  behalf  of  the  United  States  in  any 
capacity  under  or  by  virtue  of  the  authority  of  any  Department 
or  office  thereof,  and  while  holding  such  office,  employment,  or 
position  shall,  by  virtue  of  the  office,  employment,  or  position 
held  by  him,  become  possessed  of  any  information  which  might 
exert  an  influence  upon  or  affect  the  market  value  of  any  product 
of  the  soil  grown  within  the  United  States,  which  information  is 
by  law  or  by  the  rules  of  the  Department  or  office  required  to  be 
withheld  from  publication  until  a  fixed  time,  and  shall  wilfully 
impart,  directly  or  indirectly,  such  information,  or  any  part 
thereof,  to  any  person  not  entitled  under  the  law  or  the  rules  of 
the  Department  or  office  to  receive  the  same ;  or  shall,  before 
such  information  is  made  public  through  regular  official  channels, 
directly  or  indirectly  speculate  in  any  such  product  respecting 
which  he  has  thus  become  possessed  of  such  information,  by  buy- 
ing or  selling  the  same  in  any  quantity,  shall  be  fined  not  more 
than  ten  thousand  dollars,  or  imprisoned  not  more  than  ten 
years,  or  both:  Provided,  That  no  person  shall  be  deemed  guilty 
of  a  violation  of  any  such  rule,  unless  prior  to  such  alleged  viola- 
tion he  shall  have  had  actual  knowledge  thereof." 

§  168.  Government  Officer,  Etc.,  Knowingly  Compiling  or  Issu- 
ing False  Statistics  Respecting  Crops. — Section  124  of  the  New 
Code  is  likewise  pioneer  legislation,  and  is  in  the  following 
words : 

"Whoever,  being  an  officer  or  employee  of  the  United  States, 


OFFENSES    RELATING    TO    OFFICIAL    DUTIES  107 

and  whose  duties  require  the  compilation  or  report  of  statistics 
or  information  relative  to  the  products  of  the  soil,  shall  know- 
ingly compile  for  issuance,  or  issue,  any  false  statistics  or  infor- 
mation as  a  report  of  the  United  States,  shall  be  fined  not  more 
than  five  thousand  doUars.  or  imprisoned  not  more  than  five 
years,  or  both." 

§  169.  Counterfeiting  Weather  Forecasts,  Interfering  with  Sig- 
nals, Etc. — In  the  33  Statute  at  Large,  page  SS-i,  there  was  an- 
nexed to  the  Agricultural  Department  Appropriation  Act  the 
following  statute,  with  reference  to  the  protection  and  reliability 
of  weather  reports  and  forecasts,  including  signals  issued  by  and 
under  the  control  of  the  Agricultural  Department: 

"Any  person  Avho  shall  knowingly  issue  or  publish  any  comi- 
terfeit  weather  forecasts  or  warnings  of  weather  conditions, 
falsely  representing  such  forecasts  or  warnings  to  have  been  is- 
sued or  published  by  the  Weather  Bureau  or  other  branch  of 
the  Government  Service,  or  shall  molest  or  interfere  with  any 
weather  or  storm  fiag  or  weather  map  or  bulletin  displayed  or 
issued  by  the  United  States  Weather  Bureau,  shall.be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  thereof,  for  each 
oifense,  be  fined  in  a  sum  not  exceeding  five  hundred  dollars,  or 
imprisoned  not  to  exceed  ninety  days,  or  be  both  fined  and  im- 
prisoned, in  the  discretion  of  the  Court." 


CHAPTER  VII. 

OFFENSES  AGAINST  THE  OPERATIONS  OF  THE  GOV- 
ERNMENT. 

§  170.  New  Code  Generally,  Under  This  Head. 

171.  Forgery  of  Letters  Patent:   5416—27. 

172.  Forging  Bond,  Deed,  Public  Kecord,  Etc.:  5418  and  5479—28. 

173.  Forging  Deeds,  Powers  of  Attorney,  Etc.:   5421 — 29. 

174.  Having  Forged  Papers  in  Possession:    5422 — 30. 

175.  False  Acknowledgements:   New  Code,  31. 

176.  Falsely  Pretending  to  Be  an  United  States  Officer:  5548  and  23  St. 

L.,  11,  and  I  Sup.,  425—32. 

177.  False  Personation  of  Holder  of  Public  Stocks:   5435—33. 

178.  False  Demand  or  Fraudulent  Power  of  Attorney:   5436 — 34. 

179.  Making  or  Presenting  False  Claims:  5438 — 35. 

180.  Embezzling  Arms,  Stores,  Etc.:   5439—36.'- 

181.  Conspiracies  to  Commit  Offenses  Against  the  United  States;   All 

Defendants  Liable  for  Acts  of  One:  5440 — 37. 

182.  Sufficiency  of  Description  of  Conspiracy. 

183.  Venue  and  Indictment. 

184.  Illustrative  Cases. 

185.  Bribery  of  United  States  Officer:   5451—39. 

186.  Unlawfully    Taking    or    Using    Papers    Relating    to    Claims:    New 

Code,  40. 

187.  Persons    Interested    Not    to    Act    as    Agents    of    the    Government: 

1783—41. 

188.  Enticing  Desertions  from  the  Military  or  Naval  Service:   1553  and 

5455—42. 

189.  Enticing  Away  Workmen:    1668 — 43. 

190.  Injuries  to  Fortifications,  Harbor  Defences,  Etc.:  II  Sup.,  885 — 44. 

191.  Unlawfully  Entering  Upon  Military  Reservation,  Fort,  Etc.:   New 

Code,  45. 

192.  Robbery  or  Larceny  of  Personal  Property  of  the  United  States: 

5456--46. 

193.  Embezzling,  Stealing,   Etc.,  Public  Property:    I  Sup.,   88 — 47. 

194.  Receivers,  Etc.,  of  Stolen  Public  Property:  I  Sup.,  88 — 48. 

195.  Timber    Depredations    on    Public    Lands:    II.    Sup.,    65,    I.    Sup., 

168—49. 

196.  Timber,    Etc.,    Depredations    on    Indian    and    Other    Reservations: 

5388—50. 

198 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  199 

197.  Boxing,  Etc.,  Timber  on  Public  Lands  for  Turpentine:  34  St.  L., 

208—51. 

198.  Setting  Fire  to   Timber  on  Public  Lands:    II  Sup.,  562,  II  Sup.. 

1163—52. 

199.  Failing   to    Extinguish    Fires:    New    Code,    53. 

200.  Breaking  Fence  or  Gate  Enclosing  Reservation  Lands,  or  Driving 

or  Permitting  Live  Stock  to  Enter  Upon:  New  Code,  56. 

201.  Injuring  or  Removing  Posts  or  Monuments:  New  Code,  57. 

202.  Interrupting  Service:   2412—58. 

203.  Agreement  to  Prevent  Bids  at  Sale  of  Lands:   2373—59. 

204.  Injuries  to  United  States  Telegraph,  Etc.,  Lines:   I  Sup.,  46 — 60. 

205.  Counterfeiting  Weather  Forecasts:  II  Sup.,  233,  and  II  Sup.,  406, 

and  II  Sup.,  459—61. 

206.  Interfering  with  Employees  of  Bureau  of  Animal  Industry:   33  St. 

L.,  1265—62. 

207.  Forgery  of  Certificate  of  Eentry:   5417—63. 

208.  Concealment  or  Destruction  of  Invoices,  Etc. :   5443 — 63. 

209.  Resisting  Revenue  Officers;   Rescuing  or  Destroying  Seized  Prop- 

erty, Etc.:   5447—65. 

210.  Falsely  Assuming  to  Be  Revenue  Officer:  5448 — 66. 

211.  Offering  Presents  to  Revenue  Officers:   5452 — 67. 

212.  Admitting  Merchandise  to  Entry  for  Less  Than  Legal  Duty:  5444 

—68. 

213.  Securing  Entry  of  Merchandise  by  False  Samples:   5445 — 69. 

214.  False  Certification  by  Consular  Officers:  5442 — 70. 

215.  Taking  Seized  Property   from   Custody  of  Revenue   Officer:    5446 

—71. 

216.  Forging,  Etc.,  Certificate  of  Citizenship:  34  St.  L.,  602—74. 

217.  Engraving,  Etc.,  Plate  for  Printing  or  Photographing,  Etc.,  Certi- 

ficate of  Citizenship:  34  St.  L.,  602—75. 

218.  False  Personification,  Etc.,  in  Procuring  Naturalization:  5424 — 76. 

219.  Using    False    Certificate    of    Citizenship,    or    Denying    Citizenship, 

Etc.:   5425—77. 

220.  Using    False    Certificate,    Etc.,    as    Evidence    of    Right    to    Vote: 

5426—78. 

221.  Falsely  Claiming  Citizenship:   5428—79. 

222.  Taking  False  Oath  in  Naturalization:  5395 — 80. 

223.  Provisions  Applicable  to  All  Courts  of  Naturalization:  5429 — 81. 

224.  Corporations,    Etc.,   Not   to   Contribute   Money   for  Political   Elec- 

tions:  34  St.  L.,  83. 

§  170.  In  the  new  Criminal  Code,  which  went  into  effect  Jan- 
uary 1,  1910,  there  are  tifty-eight  sections,  from  27  to  58  in- 
clusive, which  treat  of  various  offenses  under  the  above  general 
head,  many  of  which  sections  will  not  be  considered  herein,  other 


200     OFFENSES  AGAINST  OPERATIONS  OF  THE   GOVERNMENT 

than  to  copy  them,  and  refer  to  the  old  Section  of  the  Revised 
Statutes  of  like  nature,  for  the  reason  that  such  offenses  are 
scarcely  ever  committed. 

§  171.  Forgery  of  Letters  Patent.— The  Act  of  March  3.  1825, 
which  became  Section  5416  of  the  Revised  Statutes,  and  which 
the  Court,  in  the  case  of  United  States  vs.  Ir\vin,  5  McLean,  178, 
determined  had  repealed  the  fourteenth  section  of  the  Act  of 
April  30,  1790,  which  provided  for  the  death  penalty  for  certain 
forgeries,  is  now  Section  27  of  the  New  Code,  in  the  following 
words : 

''Whoever  shall  falsely  make,  forge,  counterfeit,  or  alter  any 
letters  patent  granted  or  purporting  to  have  been  granted  by  the 
President  of  the  United  States ;  or  whoever  shall  pass,  utter,  or 
publish  or  attempt  to  pass,  utter,  or  publish  as  genuine,  any  such 
forged,  counterfeited  or  falsely  altered  letters  patent,  knowing 
the  same  to  be  forged,  counterfeited,  or  falsely  altered,  shall  be 
fined  not  more  than  five  thousand  dollars  and  imprisoned  not 
more  than  ten  years." 

§  172.  Forging  Bond,  Bid,  Public  Record,  Etc.— Section  28  of 
the  New  Code,  which  is  in  the  following  words: 

"Sec.  28.  Whoever  shall  falsely  make,  alter,  forge,  or  coun- 
terfeit, or  cause  or  procure  to  be  falsely  made,  altered,  forged, 
or  counterfeited,  or  willingly  aid,  or  assist,  in  the  false  making, 
altering,  forging,  or  counterfeiting,  any  bond,  bid,  proposal,  con- 
"■tract,  guarantee,  security,  official  bond,  public  record,  affidavit, 
or  other  writing  for  the  purpose  of  defrauding  the  United 
States;  or  shall  utter  or  publish  as  true,  or  cause  to  be  uttered 
or  published  as  true,  or  have  in  his  possession  with  intent  to 
utter  or  publish  as  true,  any  such  false,  forged,  altered,  or  coun- 
terfeited bond,  bid,  proposal,  contract,  guarantee,  security,  offi- 
cial bond,  public  record,  affidavit,  or  other  writing,  for  the  pur- 
pose of  defrauding  the  United  States,  knowing  the  same  to  be 
false,  forged,  altered,  or  counterfeited;  or  shall  transmit  to,  or 
present  at,  or  cause  or  procure  to  be  transmitted  to,  or  presented 
at,  the  office  of  any  officer  of  the  United  States,  any  such  false, 
forged,  altered,  or  counterfeited  bond,  bid,  proposal,  contract, 
guarantee,  security,  official  bond,  public  record,  affidavit,  or  other 
writing,  knowing  the  same  to  be  false,  forged,  altered,  or  coun- 
terfeited, for  the  purpose  of  defrauding  the  United  States,  shall 
be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  ten  years,  or  both," 

takes  the  place  of  Sections  5418  and  5479  of  the  Revised  Stat- 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  201 

utes,  which  largely  duplicate  each  other.  Many  cases  of  interest 
arose  under  the  two  old  statutes,  and  since  the  new  section  com- 
prehends the  elements  of  those  two  statutes,  the  decisions  there- 
under may  be  considered  authority  in  construing  and  determin- 
ing the  elements  of  an  offense  under  the  new  section. 

In  United  States  vs.  Hall,  131  U.  S.,  page  50,  the  Supreme 
Court  held  that  a  notary  public  has  no  general  authority  to  ad- 
minister oaths  in  reference  to  United  States  matters,  unless 
there  be  a  special  statute  with  reference  to  such  matter.  This 
decision  was  approved  in  United  States  vs.  Eeilly,  131  U.  S.,  59, 
33  Law  Ed.,  75.  In  United  States  vs.  IManion,  44  Federal,  800, 
it  is  held  that  no  Federal  law  authorizes  notaries  to  take  affi- 
davits required  by  Land  Department  rules. 

In  United  States  vs.  Todd,  25  Federal,  page  815,  it  was  deter- 
mined, as  we  have  already  seen  with  reference  to  prosecutions 
under  the  New  Code,  that  a  prosecution  under  Sections  5418  and 
5479  could  not  be  begun  by  information,  since  the  punishment 
was  infamous. 

The  elements  necessary  to  be  alleged  and  proven  to  make  an 
offense  under  the  section  are  plainly  set  forth  in  the  case  of  Uni- 
ted States  vs.  Houghton,  14  Federal,  544.  That  was  a  prosecution 
against  a  collector  of  a  port  for  forging  a  pay-roll  for  trans- 
mission to  his  superior  at  Washington,  as  a  result  of  which  he 
would  secure  the  money.  The  Court,  in  that  case,  held  that  the 
indictment  must  allege,  and  the  proof  show,  that  the  pay-roll 
was  false,  forged,  and  counterfeited;  that  the  same  was  trans- 
mitted to  the  proper  officer  of  the  Government  by  the  defendant ; 
and  that  the  false  character  of  the  writing  was  known  by  the 
defendant  at  the  time  of  the  sending;  and  that  it  was  sent  with 
intent  to  defraud  the  United  States. 

Legal  knowledge,  as  herein  understood,  and  as  understood  in 
all  criminal  prosecutions,  is,  that  every  man  is  presumed  to 
know  everything  that  he  can  learn  upon  inquiry,  when  he  has 
facts  in  his  possession  which  suggest  the  inquiry.  This  sort  of 
knowledge  must  be  affirmatively  shown  by  the  Government,  ex- 
cept in  the  case  of  confession.  It  is  generally  impossible  to  make 
it  out  by  direct  evidence,  and  can  only  be  inferred  from  overt 
acts.      Wharton,    in   discussing   the    subject,   says   that   if   the 


202     OFFENSES  AGAINST   OPEEATTONS   OF   THE   GOA^ERNMENT 

knowledge  cannot  be  implied  from  the  facts  and  circumstances 
which,  together  with  it,  constitute  the  offense,  the  other  acts  of 
the  defendant  from  which  it  can  be  implied  to  the  satisfaction  of 
the  jury  must  be  proved  at  the  trial. 

It  will  be  borne  in  mind  that  the  statute  denounces  the  offense 
of  forgery,  and  not  the  offense  of  perjury,  as  was  made  clear  by 
the  opinion  in  the  case  of  United  States  vs.  Wentworth,  11 
Federal,  52. 

It  is  absolutely  necessary  that  the  indictment  allege  that  the 
acts  were  committed  for  the  purpose  of  defrauding  the  United 
States,  and  that  the  persons  so  committing  the  offense  had  such 
intent ;  and  if  the  facts  completely  show  upon  their  face  that  the 
result  would  not  have  been  a  fraud  upon  the  United  States,  or 
that  the  United  States  could  not  have  been  defrauded,  then  and 
in  that  event,  no  offense  is  plead. 

In  the  case  of  United  States  vs.  Barnhart,  33  Federal,  459, 
which  grew  out  of  a  forged  affidavit  mth  reference  to  the  selec- 
tion of  certain  Government  lands,  the  Court  held  that  even 
though  the  affidavit  was  false  and  forged,  no  offense  was  com- 
mitted, for  the  reason  that  the  affidavit  could  not  be  legally  used 
before  the  Land  Office  or  before  the  Secretary  of  the  Interior, 
for  the  reason  that  those  officers  had  theretofore  superseded  such 
affidavits ;  hence,  such  affidavits  could  not  be  legally  used  to  de- 
fraud the  United  States. 

In  United  States  vs.  Gowdy,  37  Federal,  333,  the  Court  held 
that  a  false  affidavit  in  support  of  a  pension  would  support  a 
prosecution  hereunder,  because  the  same  was  in  support  of  a 
claim  against  the  Government,  which  would  have  resulted  in  de- 
frauding the  Government. 

In  United  States  vs.  Bimting,  82  Federal,  883.  an  applicant 
for  a  Government  clerkship  filed  a  sworn  application  in  the  form 
required  for  an  examination  by  the  Civil  Service  Commission. 
and  was  afterwards  notified  by  postal  card  to  appear  for  exami- 
nation at  a  time  stated.  By  previous  arrangement,  another  per- 
son, impersonating  the  applicant,  presented  himself  for  exam- 
ination, and  filled  out  a  paper  known  as  the  declaration  sheet, 
which  contained  questions  concerning  the  applicant,  and  signed 
the   applicant's  name  thereto.      The   Court   held   that    Section 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  203 

5418  covered  such  a  case,  and  sustained  the  indictment,  and  ob- 
served that  the  acts  were  an  attempt  to  prejudice  the  rights  of 
the  United  States  in  the  administration  of  the  Civil  Service 
Statutes,  and  had  the  defendant  been  successful,  he  would  have 
obtained  a  privilege  which  would  have  placed  him  in  a  favored 
class,  and  have  entitled  him  to  an  advantage  over  others  in  the 
appointment  to  office,  which  privilege  Avas  a  valuable  one,  and 
would  have  been  in  prejudice  of  the  Government. 

In  the  case  of  Staton  vs.  United  States,  88  Federal,  253,  the 
Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  in  passing  upon 
a  case  wherein  the  defendant  had  been  convicted  while  a  post- 
master for  making  out  his  quarterly  accounts  and  forging  the 
name  of  the  Justice  of  the  Peace  thereto,  and  thus  pretending 
to  show  that  he  had  taken  his  oath  to  the  correctness  of  his  ac- 
counts before  the  Justice  of  the  Peace,  and  upon  the  trial  of 
which  the  defendant  had  contended  that,  as  a  matter  of  fact,  his 
accounts  were  just  and  true,  and  had  thereupon  requested  the 
trial  court  to  instruct  the  jury  that  if,  as  a  matter  of  fact,  his 
accoimts  were  true  and  just,  that  then  and  in  that  event  the 
United  States  could  not  have  been  defrauded,  said : 

"Inasmuch  as  the  trial  Court,  in  its  charge,  altogether  ignored 
the  intent  with  which  the  acts  complained  of  had  been  committed, 
and  instructed  the  jury  that  the  accused  was  guilty  of  the  crime 
of  forgery  if  he  signed  the  name  of  the  Justice  to  his  reports, 
it  is  manifest  that  there  was  error. ' ' 

The  Court  further  said  that  the  accused  was  entitled  to  have  the 
jury  determine  the  intent  involved,  because  it  was  a  necessary 
ingredient  of  the  offense  charged  in  the  indictment,  as  to  whether 
he  had  been  actuated  with  an  intent  to  defraud  the  United 
States. 

So,  also,  in  the  case  of  the  United  States  vs.  Ah  Won,  97  Fed- 
eral, 494,  it  was  held  that  the  making  of  a  blank  form  of  a  certifi- 
cate of  residence,  such  as  when  filed  are  issued  by  the  United 
States  to  Chinese  and  entitle  them  to  remain  in  the  country,  is 
not  within  Section  5418,  making  it  a  crime  to  counterfeit  any 
writing  for  the  purpose  of  defrauding  the  United  States. 

In  United  States  vs.  McKinley,  127  Federal,  166,  the  Court 
held  that  the  forgery  of  homestead  applications  and  affidavits 


204  OFFENSES  AGAINST  OPEEATIONS  OF  THE  GOVERNMENT 

with  intent  to  thereby  obtain  title  to  pubHc  lands  of  the  United 
States,  constitutes  an  offense  under  Section  5418,  although  the 
land  was  described  as  in  Township  24  South  of  Range  East,  with- 
out naming  the  meridian,  where,  in  fact,  all  the  townships  in  the 
state  are  numbered  from  the  same  meridian,  and  the  description 
was,  therefore,  sufficient  to  identify  the  lands  to  the  officers  acting 
on  the  papers,  and  such  papers  were  capable  of  effecting  the  in- 
tended fraud. 

In  the  case  of  Neff  vs.  United  States,  165  Federal,  273,  the 
Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  held  that  when 
a  false  instrument  or  affidavit  is  so  palpably  and  absolutely  in- 
valid that  it  cannot  defraud  or  inflict  loss  or  injury  under  any 
circumstances,  it  may  not  form  the  basis  of  a  charge  of  forging 
it  or  of  uttering  it,  or  of  transmitting  it,  to  the  officer,  to  de- 
fraud the  United  States;  but  if,  under  any  contingency,  it  may 
have  the  effect  to  deceive  and  defraud,  it  is  sufficient  to  found  a 
conviction  of  such  an  offense  upon.  This  decision  arose  in  a 
case  where  the  defendant  had  forwarded  to  the  officers  of  the 
Land  Department  affidavits  that  were  forged  and  false,  Avhich 
were  erroneously  received  by  the  Land  Office,  but  which,  if  acted 
upon,  would  have  caused  the  issuance  by  the  United  States  of  a 
patent  to  the  land,  which  purchase  could  not  have  been  success- 
fully attacked  collaterally  if  the  land  had  passed  into  the  hands 
of  an  innocent  purchaser,  and  the  United  States  would  thereby 
have  been  dafrauded. 

§  173.  Forging  Deeds,  Powers  of  Attorney,  Etc. — Section  29  of 
the  new  Code,  in  the  following  words: 

"Whoever  shall  falsely  make,  alter,  forge,  or  counterfeit,  or  cause 
or  procure  to  be  falsely  made,  altered,  forged,  or  counterfeited,  or 
willingly  aid  or  assist  in  the  false  making,  altering,  forging,  or 
counterfeiting,  any  deed,  power  of  attorney,  order,  certificate, 
receipt,  contract,  or  other  waiting,  for  the  purpose  of  obtaining 
or  receiving,  or  of  enabling  any  other  person,  either  directly  or 
indirectly,  to  obtain  or  receive  from  the  United  States,  or  any 
of  their  officers  or  agents,  any  sum  of  money,  or  whoever  shall 
utter  or  publish  as  true,  or  cause  to  be  uttered  or  published  as 
true,  any  such  false,  forged,  altered,  or  counterfeited  deed,  power 
of  attorney,  order,  certificate,  receipt,  contract,  or  other  writing, 
with  intent  to  defraud  the  United  States,  knowing  the  same  to 


OFFENSES  AGAINST  OPEEATIONS  OF  THE  GOVEENMENT  205 

be  false,  altered,  forged,  or  counterfeited;  or  whoever  shall 
transmit  to.  or  present  at,  or  cause  or  procure  to  be  transmitted 
to,  or  presented  at,  any  office  or  officer  of  the  Government  of 
the  United  States,  any  deed,  power  of  attorney,  order,  certifi- 
cate, receipt,  contract,  or  other  writing,  in  support  of,  or  in  rela- 
tion to,  any  account  or  claim,  with  intent  to  defraud  the  United 
States,  Imowing  the  same  to  be  false,  altered,  forged,  or  counter- 
feited, shall  be  fined  not  more  than  one  thousand  dollars  and  im- 
prisoned not  more  than  ten  vears. " 

takes  the  place  of  old  Section  5421.  and  contains  all  of  the  ele- 
ments of  the  old  Section,  and  adds  thereto  the  word  "contract." 
and  changes  the  punishment,  fixing  a  maximum  fine  and  im- 
prisonment. 

Considered  abstractly,  the  Section  comprises  three  offenses: 
first,  the  making  of  any  forged  or  counterfeited  deed  or  other 
writing  as  therein  enumerated  for  the  purpose  of  obtaining  any 
sum  of  money  from  the  United  States  or  any  of  its  officers;  sec- 
ond, the  uttering  of  any  such  forged  or  counterfeited  paper,  with 
the  intent  to  defraud  the  United  States.  Imowing  it  to  have  been 
so  forged;  third,  the  transmitting  or  presenting  to  any  office  or 
officer  of  the  Government  any  such  A^Titing.  with  knowl- 
edge that  it  is  false,-  or  forged,  with  the  intent  to  de- 
fraud the  United  States.  An  indictment,  therefore,  under 
either  of  the  three  parts,  must  contain  the  elements  as  above  set 
out,  and  must  specially  plead  the  intent  and  knowledge  where 
requisite.  So,  likewise,  a  bill  that  includes  in  one  count  allega- 
tions that  set  up  acts  covering  the  entire  statute,  would  be  bad 
for  duplicity. 

In  the  case  of  United  States  vs.  Font,  123  Federal.  625.  District 
Judge  Adams  divided  the  statute  as  above  indicated.  In  the 
case  of  United  States  vs.  Swan.  131  Federal,  page  140.  the  same 
judge,  in  passing  upon  this  statute,  held  that  the  forgery  of  an 
affidavit  by  a  pensioner,  to  be  used  in  contesting  his  deserted 
wife's  claims  for  one-half  of  his  pension,  as  authorized  by  the 
Act  of  March  third,  1899,  was  not  an  offense  within  old  Section 
5421,  which  provided  that  any  person  who  falsely  forges  any 
writing  for  the  purpose  of  obtaining  or  receiving,  or  enabling 
any  other  person,  directly  or  indirectly,  to  receive  from  the  Uni- 
ted States,  any  sum  of  money,  shall  be  imprisoned,  etc.,  was  not 


206     OFFENSES  AGAINST   OPEKATIONS   OF   THE   GOVERNMENT 

an  offense  thereunder.  The  decision  is  based  upon  the  ground 
that  the  purpose  of  Swan  seemed  to  be  to  make  use  of  the  forged 
writing  to  prevent  his  wife  from  obtaining  half  of  the  pension, 
which  had  already  been  allowed  to  him.  He  was,  therefore, 
making  no  claim  against  the  Uinted  States  for  himself.  His 
right  to  a  pension  had  already  been  established,  and  he,  there- 
fore, did  not  have  the  necessary  intent  under  the  statute  to  ob- 
tain or  receive  from  the  United  States,  etc.,  any  sum  of  money. 

Carrying  out  this  distinction,  the  cases  of  United  States  vSi. 
Barney,  5  Blatchf..  294,  and  United  States  vs.  Myler,  27  Federal 
Case  No.  15849,  can  be  read  with  profit,  since  they  hold  that  the 
first  and  second  parts  of  the  old  section,  and,  therefore,  of  course, 
of  the  new  statute,  are  confined  to  instruments  designed  to  ob- 
tain money  from  the  United  States,  and  a  count  alleging  the 
forgery  and  uttering  of  a  certain  false  and  fraudulent  bond  on 
the  exportation  of  distilled  liquors  charges  no  offense  under  the 
section.  To  the  same  effect  is  the  case  of  United  States  vs.  Reese. 
4  Sawyer,  629,  which  held  in  substance  that  an  indictment  for 
uttering  and  presenting  as  true  to  the  Board  of  Land  Commis- 
sioners, a  false  writing  purporting  to  be  a  grant  of  certain  de- 
scribed lands  from  the  Mexican  Government,  with  intent  to  de- 
fraud the  United  States,  knowing  the  same  to  be  false,  was  sub- 
ject to  demurrer  on  the  ground  that  the  section  applied  only  to 
instruments  altered  or  forged  for  the  purpose  of  obtaining  mon- 
eys from  the  United  States  or  their  officers  or  agents.  To  the 
same  effect  is  Staton  vs.  Ignited  States.  88  Federal,  253,  where 
it  was  held  that  an  indictment  which  alleged  the  signing  of  the 
name  of  a  Justice  of  the  Peace  to  an  affidavit,  with  the  intent  to 
defraud  the  Ignited  States,  charged  no  offense  imder  the  section. 

In  United  States  vs.  Wilson,  28  Federal  Case  No.  16732,  it 
was  held  that  the  words  "other  writing"  did  not  embrace  a 
forged  endorsement  of  a  genuine  instrument,  as  the  forgery  to  a 
bank  check  drawn  by  a  Pension  Agent  upon  a  depository  of  the 
United  States. 

In  the  case  of  the  United  States  vs.  Rohmstormm,  5  Blatchf., 
222,  it  was  held  that  a  claim  against  the  Government  under  this 
section  need  not  be  in  favor  of  the  party  presenting  the  false 
writing  or  instrument  or  paper  in  support  thereof. 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  207 

In  United  States  vs.  Glasener,  81  Federal,  566,  the  Court  held 
that  false  statements  in  the  certificate  of  a  notary  public  did  not 
come  within  the  provisions  of  the  section;  to  the  direct  contrary 
of  which  holding  is  the  case  of  the  United  States  vs.  Hartman. 
65  Federal,  490,  the  courts  being  of  equal  dignity.  In  that  case, 
the  Court  held  that  the  statement  in  a  certificate  of  something 
that  was  not  true,  if  taken  with  the  intent  and  knowledge  re- 
quired by  the  statute,  would  authorize  prosecution  thereunder, 
and  subject  the  offender  to  pimishment.  To  the  same  effect,  is  the 
decision  in  the  case  of  United  States  vs.  Moore,  60  Federal,  738. 

In  the  cases  of  United  States  vs.  "Wilcox.  4  Blatchf.,  385,  and 
United  States  vs.  Bickford,  4  Blatchf.,  337,  it  was  held  that  where 
a  writing  did  not  state  all  the  facts,  if  made  with  the  intent  to 
defraud  denounced  by  the  statute,  it  would  constitute  an  offense 
under  this  section. 

It  must  be  remembered,  as  a  general  proposition,  that  the  false 
statements  so  made  must  be  material,  just  as  materiality  is  meant 
in  a  prosecution  for  perjury.  Every  false  oath  is  not  perjury. 
United  States  vs.  Corbin,  11  Federal,  238. 

In  the  case  of  United  States  vs.  Moore,  60  Federal.  738,  Dis- 
trict Judge  Cox,  in  passing  vipon  a  demurrer  to  an  indictment 
luider  this  section,  says  that, 

"the  authorities  are  unanimous  in  holding  that  the  first  para- 
graph of  this  Section  5421  is  a  forgery,  and  not  a  perjury,  stat- 
ute.   It  punishes  one  who  falsely  makes  an  affidavit,  and  not  one 
who  makes  a  false  affidavit.    The  words  of  the  statute  are  ejiisdem 
generis,  and  are  the  words  usually  adopted  to  describe  the  crime 
of  forgery.    False  making  may  almost  be  said  to  be  synonymous 
with  forging.    United  States  vs.  Statts,  8  Howard,  41 ;  U.  S.  vs 
Barney,  5  Blatchf.,  294;  U.  S.  vs.  Wentworth,  11  Federal,  52 
U.  S.  vs.  Reese,  4  Sawyer,  629 ;  U.  S.  vs.  Cameron,  4  Dakota,  141 
13  N.  W.,  561;  State  vs.  Wilson,  28  Minnesota,  52,  9  N.  AV..  28 
Mann  vs.  People.  15  Hun.,  155;  State  vs.  Yoimg,  46  N.  H..  266 
Commonwealth  vs.  Baldwin,  11  Gray,  197 ;  Barb.  Criminal  Law 
97 ;  Wharton  Criminal  Law,  653.    It  is  clear,  then,  if  the  indict- 
ment merely  charges  the  defendants  with  making  an  affidavit 
which  contains  a  false  statement  of  fact,  that  the  offense  cannot 
be  punished  imder  the  paragraph  quoted.     For  reasons  stated 
hereafter,  it  is  thought  that  the  indictment  is  defective  under 
any  construction  of  the  statute ;  but  assuming  now  that  it  con- 
tains a  full  and  clear  statement  of  the  acts  of  omission  and  com- 


208  OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT 

mission  attending  the  fabrication  of  the  affidavit  and  jurat,  it 
amoimts  only  to  an  averment  that  the  notarial  certificate  is  false. 
The  names  signed  to  the  affidavit  and  jurat  are  all  genuine.  No 
part  of  the  affidavit  has  been  altered,  forged,  or  counterfeited. 
In  short,  the  certificate  contains  a  number  of  false  statements.  It 
is  a  false  certificate,  but  not  a  forged  certificate.  No  authority 
has  been  cited  or  found  by  the  Court,  holding  that  a  notary  who 
signs  a  certificate  containing  untruthful  statements,  is  guilty 
under  a  forgery  statute.  The  statute  must  be  construed  strictly, 
and  until  such  authority  is  presented,  I  shall  hold  that  the 
paragraph  quoted  does  not  cover  such  an  offense." 

Of  course,  the  indictment  must  allege  that  the  forged  or  al- 
tered paper  was  transmitted  to  the  officer  of  the  Government  in 
support  of,  or  in  relation  to,  a  pending  claim.  In  other  words, 
it  must  appear  that  there  was  an  accoimt  or  claim  against  the 
United  States.  United  States  vs.  Kessel,  62  Federal,  59.  See 
also  U.  S.  vs.  Albert,  45  Federal,  552 ;  United  States  vs.  Kuents- 
ler,  74  Federal,  220 ;  United  States  vs.  Plansee,  79  Federal,  303 ; 
De  Lemos  vs.  United  States,  91  Federal,  497. 

In  De  Lemos  vs.  United  States,  91  Federal,  499,  the  case  arose 
by  reason  of  the  forgery  of  an  endorsement  to  a  genuine  Govern- 
ment draft,  and  the  Circuit  Court  of  Appeals  for  the  Fifth  Cir- 
cuit held  that  an  indictment,  to  be  good  under  5421,  on  such  a 
state  of  facts,  should  lay  the  charge  on  the  endorsement,  and 
not  on  the  draft,  because  it  was  the  endorsement  that  was  forged, 
and  not  the  draft. 

§  174.  Having  Forged  Papers  in  Possession. — Section  30  of  the 
New  Code  is  in  the  following  words : 

'  *  Sec.  30.  Whoever,  knowingly  and  with  intent  to  defraud  the 
United  States,  shall  have  in  his  possession  any  false,  altered, 
forged,  or  counterfeited  deed,  power  of  attorney,  order,  certifi- 
cate, receipt,  contract,  or  other  writing,  for  the  purpose  of  en- 
abling another  to  obtain  from  the  United  States,  or  from  any 
officer  or  agent  thereof,  any  sum  of  money,  shall  be  fined  not 
more  than  five  hundred  dollars,  or  imprisoned  not  more  than  five 
years,  or  both. ' ' 

The  new  section  fixes  a  maximum  punishment,  and  contains  the 
word  "contract."  The  old  statute  5422  left  the  punishment  to 
the  discretion  of  the  Court.  These  are  the  only  two  differences 
betweeii  the  old  and  the  new. 


OFFENSES  AGAINST   OPERATIONS   OF   THE   GOA^ERNMENT     209 

§  175.  False  Acknowledgements. — Section  31  of  the  New  Code 
reads  as  follows: 

"Sec.  31.  Whoever,  being  an  officer  authorized  to  administer 
oaths  or  to  take  and  certify  acknowledgments,  shall  knowingly 
make  any  false  acknowledgement,  certificate,  or  statement 
concerning  the  appearance  before  him  or  the  taking  of  an 
oath  or  affirmation  by  any  person  with  respect  to  any  proposal, 
contract,  bond,  undertaking,  or  other  matter,  submitted  to,  made 
with,  or  taken  on  behalf  of,  the  United  States,  and  concerning 
which  an  oath  or  affirmation  is  required  by  law  or  regulation 
made  in  pursuance  of  law,  or  with  respect  to  the  financial 
standing  of  any  principal,  surety,  or  other  party  to  any  such 
proposal,  contract,  bond,  undertaking,  or  other  instrument,  shall 
be  fined  not  more  than  two  thousand  dollars,  or  imprisoned  not 
more  than  two  years,  or  both." 

This  is  an  entirely  new  section.  In  the  1909  Supplement  of  the 
Federal  Statutes  annotated,  it  is  said  in  speaking  of  this  sec- 
tion, that, 

"This  section  is  new.  As  originally  drafted,  it  was  designed 
to  reach  officers  making  false  acknowledgements  in  contracts, 
etc.,  with  the  Post-office  Department,  that  department  having 
strongly  recommended  such  a  section,  in  order  to  put  a  stop  to 
abuses  which  frequently  occurred  with  respect  to  mail  and  other 
contracts.  The  Committee  on  Revision  of  Laws  approved  the 
recommendation,  and  broadened  the  section  so  as  to  punish  false 
acknowledgements  with  respect  to  any  contract  made  with  or  on 
behalf  of  the  Government." 

This  statute  would  seem  to  answer  the  cases  cited  under  Sec- 
tion 29,  which  held  that  a  false  certificate  of  a  notary  was  not 
punishable. 

§  176.  Falsely  Pretending  to  be  a  United  States  Officer. — Section 
32  of  the  New  Code,  in  the  following  words : 

"Whoever,  with  intent  to  defraud  either  the  United  States  or 
any  person,  shall  falsely  assume  or  pretend  to  be  an  officer  or 
employee  acting  under  the  authority  of  the  United  States,  or 
any  department,  or  any  officer  of  the  Government  thereof,  and 
shall  take  upon  himself  to  act  as  such,  or  shall  in  such  pretended 
character  demand  or  obtain  from  any  person  or  from  the  United 
States,  or  any  department,  or  any  officer  of  the  Government 
thereof,  any  money,  paper,  document,  or  other  valuable  thing, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned 
not  more  than  three  years,  or  both," 


210     OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT 

contains  a  general  statute,  which  was  originally  a  special  statute 
against  one  falsely  representing  himself  to  be  a  Revenue  Officer, 
as  set  out  in  old  Section  5448.  This  section  was  amended  in  the 
23  Statute  at  Large,  page  11,  Chapter  26,  First  Supplement  425, 
and  passes  into  the  New  Code  as  shown  above. 

In  the  case  of  the  United  States  vs.  Ballard,  118  Federal,  757, 
District  Judge  Phillips,  in  passing  upon  an  indictment  drawn 
under  the  above  mentioned  amendment,  held  that  this  statute  cov- 
ered the  obtaining  of  some  valuable  thing  by  means  of  the  fraud- 
ulent standing  or  credit  secured  by  holding  one's  self  out  as  such 
an  officer,  and  that  a  month's  lodging  is  a  valuable  thing  within 
the  meaning  of  the  law. 

The  opinion  sets  out  the  indictment  that  was  being  passed 
upon,  which  charges  that  the  defendant  pretended  to  be  a  Dep- 
uty United  States  Marshal,  and  in  such  pretended  character,  did 
demand  and  obtain  from  Julia  Eggeling  a  thing  of  value,  to  wit, 
lodging  of  the  value  of  twenty  dollars.  A  second  count  therein 
pleads  the  same  fact  in  a  different  manner.  While  the  indict- 
ment is  in  general  terms,  the  Court,  in  passing  thereon,  upon 
objection,  held  that  the  offense  was  statutory,  and  a  bill  sufficient- 
ly describes  the  same,  which  follows  the  language  of  the  statute 
and  describes  in  addition  thereto  the  act  that  was  done  to  con- 
stitute the  offense. 

Judge  Adams,  in  United  States  vs.  Taylor,  108  Federal,  held 
that  the  section  created  two  offenses,  the  first  of  which  included 
as  an  essential  element,  the  use  of  such  assumed  position  to  ex- 
tort, money  or  property  by  wrongfully  asserting  a  pretended 
claim  of  the  United  States,  and  the  second  comprehending  the 
extortion  of  money  not  imder  the  guise  of  asserting  a  claim  due 
the  United  States,  but  including  the  holding  out  of  the  offender 
as  an  officer  for  the  purpose  of  giving  him  such  credit  as  will  en- 
title him  to  successfully  demand  money  from  another  for  his  pri- 
vate use,  with  intent  to  defraud,  and.  therefore,  an  indictment 
charging  that  the  defendant  feloniously,  with  the  intent  to  de- 
fraud H.,  did  falsely  assume  and  pretend  to  be  an  officer  acting 
under  the  authority  of  the  United  States  Treasury  Department, 
and  did  then  and  there  feloniously,  and  with  intent  to  defraud 
said  H.,  take  upon  himself  to  act  as  such  officer,  and  as  a  part  of 


OFFENSES  AGAINST   OPEKATIONS   OF   THE   GOVERNMENT     211 

the  same  sentence  including  the  charge,  ' '  and  did  then  and  there 
in  such  assumed  and  pretended  character  as  such  officer,  demand 
and  receive  the  sum  of  ten  dollars,"  was  demurrable  for  duplic- 
ity. Judge  Simonton,  in  charging  the  jury  under  this  statute. 
told  them  that  it  was  necessary  to  find  that  the  defendant  as- 
sumed to  be  the  officer  mentioned  in  the  indictment;  that  such 
assumption  was  false ;  that  he  made  such  false  assumption  with 
the  intent  to  defraud ;  and  that  he  carried  out  such  intent.  That 
was  in  the  case  of  United  States  vs.  Curtain,  43  Federal,  433, 
which  was  an  indictment  growing  out  of  one  pretending  to  be  a 
Post-office  Inspector,  and  in  such  pretended  capacity,  visited  a 
postmaster,  and  charged  him  with  an  illegal  sale  of  stamps,  which 
illegal  sale  the  postmaster  admitted;  whereupon,  the  imposter 
received  one  hundred  fifty  dollars  from  the  postmaster,  giving 
him  a  receipt  in  full  for  the  stamps  illegally  used,  and  signing 
it  as  Post-office  Inspector.  The  same  judge,  in  United  States  vs. 
Bradford,  53  Federal,  542,  charged  the  jury  to  find  the  defendant 
not  guilty  upon  the  following  state  of  facts :  A  Postal  Clerk  was 
in  his  postal  car,  assorting  his  mail,  and  he  discovered  Bradford 
concealed  in  a  corner  of  the  car.  He  sprang  and  seized  him  by 
the  collar.  The  defendant  at  once  said,  ' '  I  am  Bradford,  and  in 
the  service."  The  Postal  Clerk  denied  that  he  was  in  the  service, 
and  Bradford  then  said,  "I  have  been  discharged,  but  am  trying 
to  steal  a  ride  to  Florence.' '  The  facts  not  showing  that  Bradford 
claimed  at  the  time  to  be  an  employee  of  the  United  States,  he 
was  not  guilty  of  a  violation  of  this  section. 

In  United  States  vs.  Farnham,  127  Federal,  478,  District 
Judge  McPherson  set  aside  a  conviction,  and  discharged  the  de- 
fendant, in  a  case  under  this  statute,  which  showed  the  following 
facts :  The  defendant,  while  stopping  at  the  prosecutor's  hotel  as 
a  guest,  falsely  represented  himself  to  the  prosecutor  as  a  Secret 
Service  operative  in  the  employ  of  the  Government,  and  ex- 
hibited to  the  prosecutor  a  metal  badge,  inscribed,  "Secret  Serv- 
ice, U.  S."  Ten  months  thereafter,  the  defendant  returned,  and 
represented  himself  as  a  traveling  salesman,  spending  several 
days  at  the  hotel.  Prosecutor  believed  defendant  to  be  a  Free 
Mason,  and  took  special  care  of  him  during  sickness  on  that  ac- 
count, after  which  the  defendant  presented  a  check  which  he 


212     OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT 

alleged  had  been  signed  by  his  employer  in  payment  of  his  sal- 
aiy,  and  obtained  seventy  dollars  thereon  from  prosecutor.  The 
check  was  drawn  on  a  bank  which  did  not  exist ;  was  returned 
unpaid,  and  the  prosecutor  declared  that  he  cashed  the  check 
because  he  continued  to  believe  that  the  defendant  was  a  Secret 
Service  operative. 

In  discharging  the  defendant,  the  Court  held  that  the  facts 
were  not  sufficient  to  sustain  a  conviction  for  pretending  to  be 
an  employee  of  the  United  States,  and  as  such,  knowingly  and 
feloniously  obtaining  from  another  a  sum  of  money,  etc. 

§  177.  False  Personation  of  Holder  of  Public  Stocks. — Section 
33  of  the  New  Code,  which  re-enacts  old  Section  5435,  is  in  the 
following  words: 

"Sec.  33.  Whoever  shall  falsely  personate  any  true  and  law- 
ful holder  of  any  share  or  sum  in  the  public  stocks  or  debt  of  the 
United  States,  or  any  person  entitled  to  any  annuity,  dividend, 
pension,  prize  money,  wages,  or  other  debt  due  from  the  United 
States,  and,  under  color  of  such  false  personation,  shall  transfer 
or  endeavor  to  transfer  such  public  stock  or  any  part  thereof,  or 
shall  receive  or  endeavor  to  receive  the  money  of  such  true  and 
lawful  holder  thereof,  or  the  money  of  any  person  really  entitled 
to  receive  such  annuity,  dividend,  pension,  prize  money,  wages, 
or  other  debt,  shall  be  fined  not  more  than  five  thousand  dollars, 
and  imprisoned  not  more  than  ten  years." 

§  178.  False  Demand  or  Fraudulent  Power  of  Attorney.— Old 
Section  5436  is  displaced  by  the  New  Code  in  Section  34,  as  fol- 
lows: 

''Sec.  34.  Whoever  shall  knowingly  or  fraudulently  demand 
or  endeavor  to  obtain  any  share  or  sum  in  the  public  stocks  of 
the  United  States,  or  to  have  any  part  thereof  transferred,  as- 
'  signed,  sold,  or  conveyed,  or  to  have  any  annuity,  dividend,  pen- 
sion, prize  money,  wages,  or  other  debt  due  from  the  United 
States,  or  any  part  thereof,  received,  or  paid  by  virtue  of  any 
false,  forged,  or  counterfeited  power  of  attorney,  authority,  or 
instrument,  shall  be  fined  not  more  than  five  thousand  dollars, 
and  imprisoned  not  more  than  ten  years." 

§  179.  Making  or  Presenting  False  Claims. — Section  5438  of 
the  old  statutes  is  replaced  by  Section  35  of  the  New  Code,  in 
the  following  words: 

"Sec.  35.  Whoever  shall  make  or  cause  to  be  made,  or  present 
or  cause  to  be  presented,  for  payment  or  approval,  to  or  by  any 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  213 

person  or  officer  in  the  civil,  military,  or  naval  service  of  the 
United  States,  any  claim  upon  or  against  the  Government  of  the 
United  States,  or  any  department,  or  officer  thereof,  knowing  such 
claim  to  be  false,  fictitious,  or  fraudulent ;  or  whoever,  for  the 
purpose  of  obtaining,  or  aiding  to  obtain  the  payment  or  approval 
of  such  claim,  shall  make  or  use,  or  cause  to  be  made  or  used,  any 
false  bill,  receipt,  voucher,  roll,  account,  claim,  certificate,  affi- 
davit, or  deposition,  knowing  the  same  to  contain  any  fraudulent 
or  fictitious  statement  or  entry ;  or  whoever  shall  enter  into  any 
agreement,  combination,  or  conspiracy  to  defraud  the  Govern- 
ment of  the  United  States,  or  any  department  or  officer  thereof, 
by  obtaining  or  aiding  to  obtain  the  payment  or  allowance  of  any 
false  or  fraudulent  claim ;  or  whoever,  having  charge,  possession, 
custody,  or  control  of  any  money  or  other  public  property  used  or 
to  be  used  in  the  military  or  naval  service,  with  intent  to  defraud 
the  United  States,  or  wilfully  to  conceal  such  money  or  other 
property,  shall  deliver  or  cause  to  be  delivered,  to  any  other  per- 
son having  authority  to  receive  the  same,  any  amount  of  such 
money  or  other  property  less  than  that  for  which  he  received  a 
certificate  or  took  a  receipt ;  or  whoever,  being  authorized  to  make 
or  deliver  any  certificate,  voucher,  receipt,  or  other  paper  certi- 
fying the  receipt  of  arms,  ammunition,  provisions,  clothing,  or 
other  property  so  used  or  to  be  used,  shall  make  or  deliver  the 
same  to  any  other  person  without  full  knowledge  of  the  truth 
of  the  facts  stated  therein,  and  with  intent  to  defraud  the  United 
States,  shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both.  And  whoever  shall 
knowingly  purchase  or  receive  in  pledge  for  any  obligation  or 
indebtednes  from  any  soldier,  oiScer,  sailor,  or  other  person 
called  into  or  employed  in  the  military  or  naval  service,  any  arms, 
equipments,  ammunition,  clothes,  military  stores,  or  other  public 
property,  whether  furnished  to  the  soldier,  sailor,  officer,  or  other 
person  under  a  clothing  allowance  or  otherwise,  such  soldier, 
sailor,  officer,  or  other  person  not  having  the  lawful  right  to 
pledge  or  sell  the  same,  shall  be  fined  not  more  than  five  hundred 
dollars,  and  imprisoned  not  more  than  two  years." 

This  section  contains  several  offenses,  and  sets  out  two  different 
punishments.  It  is  necessary,  in  alleging  an  offense  under  the 
first  portion  of  the  section  that  there  be  an  averment  that  the 
false  claim,  etc.,  was  made  for  the  purpose  of  being  presented; 
in  other  words,  a  false  claim  that  was  not  made  for  such  a  pur- 
pose is  not  inhibited  by  the  statute.  In  prosecutions  under  this 
portion  of  the  statute,  it  is  not  necessary  to  set  out  the  name  of 


214     OFFENSES  AGAENST   OPERATIONS   OF   THE   GOVERNMENT 

the  officer  or  person  to  whom  the  claim  was  presented,  if  such  per- 
son be  sufficiently  designated  by  his  position,  as  First  Auditor  of 
the  Treasury.  So,  also,  diiferent  items  of  the  account  may  all  be 
included  in  one  count  of  the  indictment.  United  States  vs.  Am- 
brose, 2  Federal,  764. 

In  United  States  vs.  Coggin.  3  Federal,  492,  the  Court  held  that 
old  Section  5438  includes  a  false  claim  presented  by  a  person  as 
a  pensioner,  demanding  money  as  a  pensioner.  In  that  case,  the 
defendant,  by  fraud,  secured  a  pension  certificate  from  the  Gov- 
ernment, and  thereby  had  his  name  entered  on  the  pension  roll. 
This  certificate  he  presented  to  the  Pension  Agent,  and  obtained 
money  from  the  United  States.  The  indictment  alleged  that  the 
grounds  upon  which  the  application  was  sustained  before  the 
Commissioner  of  Pensions  and  his  name  entered  upon  the  list  of 
pensioners,  were  all  false,  fictitious,  and  fraudulent,  and  that  in 
fact  he  was  not  injured  at  the  battle  at  Corinth  in  any  way,  and 
was  not  entitled  to  a  pension.  The  Court  held  that  the  facts 
alleged  were  sufficient  to  constitute  an  offense  under  that  section. 

In  the  case  of  United  States  vs.  Hull,  14  Federal,  324,  it  was 
held  by  a  District  Court,  that  the  section  was  not  limited  in  its 
operation  to  false  claims  presented  by  the  accused  on  his  own  be- 
half, but  applied  as  well  to  such  claims  presented  by  an  attorney, 
agent,  officer,  or  other  person  presenting  or  aiding  in  the  collec- 
tion of  a  false  claim,  knowing  it  to  be  false.  Of  course,  the  alle- 
gation of  "knowledge"  is  absolutely  necessary,  as  is  also  the 
proof.  An  indictment  under  this  section  that  the  defendant 
"presented  and  caused  to  be  presented,"  is  not  bad  for  duplicity, 
because  the  statute  employs  the  disjunctive  "or"  instead  of 
"and."  In  United  States  vs.  Franklin,  174  Federal,  161,  the 
same  question  was  passed  upon,  and  the  Court  held  that  an  in- 
dictment was  not  bad  for  duplicity  because  it  charges  that  the 
accused  "made  and  presented."  In  the  Franklin  case  the  in- 
dictment, which  set  out  the  claim  showing  it  to  be  an  itemized  ac- 
count, and  averred  that  certain  sums  charged  therein  "should 
have  been"  certain  smaller  sums,  sufficiently  shows  wherein  the 
claim  is  false  and  fraudulent.  In  that  case  it  was  alleged  that 
the  fraudulent  claim  was  against  the  War  Department  of  the 
United  States,  and  described  the  officer  to  whom  the  claim  was 


OFFENSES  AGAINST   OPERATIONS  OF  THE  GOV'ERNMENT     215 

presented  as  a  Brigadier-General  in  the  Army,  and  Superintend- 
ent of  the  Military  Academy  at  West  Point,  and  alleged  that  he 
was  an  officer  authorized  to  approve  such  claim.  Held,  that  such 
allegation  was  sufficient  to  show  authority.  Affirmed  by  U.  S. 
Supreme  Court,  March  14,  1910. 

The  case  of  United  States  vs.  Ingraham,  49  Federal,  155,  was 
an  indictment  for  presenting  for  payment  and  approval  to  the 
Third  Auditor  of  the  Treasury  Department  of  the  United  States 
of  America,  a  certain  claim  against  the  Government  of  the  United 
States,  and  also  in  the  second  count  for  using  a  false  affidavit  in 
support  thereof.  An  objection  of  uncertainty,  charging  no  of- 
fense and  duplicity,  was  overruled  by  the  trial  court,  and  the 
same  questions  were  presented  to  the  Supreme  Court  in  the  same 
case,  reported  in  155  U.  S.,  page  436;  39  Law^  Ed.,  page  213,  and 
the  conviction  was  affirmed,  the  Court  holding  that  it  was  not 
error,  of  course,  to  join  distinct  offenses  of  the  same  class  in  one 
indictment  in  separate  counts,  and  that  a  paper  presented  to 
the  Third  Auditor  of  the  Treasury  of  the  United  States,  in  sup- 
port of  a  claim  against  the  Government,  purporting  to  be  an  affi- 
davit certified  to  by  a  Justice  of  the  Peace,  is  admissible  in  evi- 
dence without  formal  proof  that  he  had  been  duly  conunissioned 
and  qualified  as  a  Justice  of  the  Peace,  and  that  the  person  in- 
dicted for  presenting  for  payment  a  false  and  fictitious  claim  to 
the  Auditor  of  the  Treasury,  and  using  a  false  affidavit  in  sup- 
port thereof,  if  he  knew  it  to  be  false,  is  not  the  less  guilty  because 
the  person  purporting  to  be  a  Justice  of  the  Peace  before  whom 
the  affidavit  was  sworn  to,  had  not  been  commissioned  as  such, 
and  was  not  entitled  to  administer  an  oath. 

In  the  case  of  United  States  vs.  Michael,  153  Federal,  609, 
Judge  Maxey  instructed  the  jury  that  the  receiving  in  pledge 
by  a  civilian  from  a  soldier,  of  clothing  issued  to  the  latter,  dur- 
ing the  term  of  his  enlistment,  does  not  constitute  a  penal  of- 
fense within  Revised  Statutes  5438,  providing  that  every  person 
who  purchases  or  receives  in  pledge  from  a  soldier  any  arms, 
equipment,  ammunition,  clothing,  military  stores,  or  other  public 
property,  such  soldier  not  having  the  lawful  right  to  pledge  or 
sell  the  same,  shall  be  imprisoned,  etc.,  since  the  clothing,  on 
being  issued  to  the  soldier,  becomes  his  individual  property,  and 


216     OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT 

ceases  to  belong  to  the  United  States.  In  conflict  with  this 
opinion,  seems  to  be  the  case  of  United  States  vs.  Koplik,  155 
Federal,  919,  in  which  Judge  Chatfield  holds  that  it  is  not  a  de- 
fense to  a  prosecution  under  such  statute,  5438,  for  receiving 
property  in  pledge  from  a  soldier  while  in  the  service,  that  such 
property  consisted  of  clothing  which  he  had  paid  for  out  of  his 
clothes  allowance,  or  which  had  been  charged  against  it.  The 
policy  of  the  statute  seems  to  be  best  served  by  Judge  Chatfield 's 
decision.  In  United  States  vs.  Hart,  146  Federal,  202,  a  decision 
of  District  Judge  Bethea  seems  in  a  measure  to  support  Judge 
Chatfield 's  construction  of  the  statute.    It  is  there  said: 

"On  motion  to  take  from  the  jury,  the  question  arose  as  to 
whether  certain  articles  of  clothing,  namely,  caps,  gloves,  shoes, 
and  goods  which  had  been  issued  to  soldiers  in  the  service  of  the 
United  States,  and  by  them  sold  and  pledged  to  the  defendant, 
are  public  property  under  Section  5438  of  the  Revised  Statutes. 
Clothing  is  issued  to  soldiers  of  the  United  States  for  use  by  them 
in  the  capacity  of  soldiers.  The  Government  determines  the 
character,  quality,  and  kind  of  clothing  to  be  issued  to  the  sol- 
■^iers;  and  when  the  clothing  is  issued,  although  it  is  charged 
against  the  soldiers  on  their  clothing  account,  they  receive  but  a 
qualified  interest  therein." 

The  Seventeenth  Article  of  War  punishes  the  soldier  by  Court 
Martial  if  he  loses  or  spoils  his  clothing  or  accoutrements,  and 
Section  3748  authorizes  the  Government  to  seize  such  property 
wherever  found.  This  would  indicate  that  the  title  to  clothing 
issued  to  soldiers  remains  in  the  United  States. 

The  case  of  United  States  vs.  Smith,  156  Federal,  859,  while  it 
is  a  prosecution  under  the  same  portion  of  the  statute,  does  not 
raise  or  discuss  the  conflict  noted  in  the  above  two  cases.  Judge 
Hanford,  in  the  Smith  case,  in  charging  the  jury,  says : 

"You  will  observe  that  the  provisions  of  this  statute,  5438, 
apply  to  persons  who  knowingly  purchase  or  receive  in  pledge 
any  of  the  kinds  of  property  described  here  from  a  soldier,  offi- 
cer, or  sailor  in  the  service  of  the  United  States.  The  elements  of 
the  crime  are  guilty  knowledge,  and  the  actual  purchase  of  and 
receiving  in  pledge  the  kind  of  property  named,  and  receiving  it 
from  a  person  in  the  military  service  of  the  United  States.  All 
'those  things  are  necessary  to  be  proven,  in  order  to  make  out  a 
Criminal  case.  The  guilty  knowledge  that  is  a  necessary  element 
of  the  crime  is  not  knowledge  that  the  act  is  unlawful.    The  law 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  217 

does  not  permit  ignorance  of  the  provisions  of  the  law  to  avail 
as  a  defense  in  any  case,  but  the  knowledge  must  be  knowledge 
of  the  facts,- — Imowledge  that  the  property  offered  for  sale  or 
pledge  is  the  military  stores  or  property  of  the  United  States, — 
that  is,  arms,  clothing,  or  property  that  is  provided  by  the  United 
States  for  use  in  the  military  service,  and  Icnowledge  that  the 
person  offering  to  sell  or  to  pledge  it  is  a  person  in  the  military 
service  at  the  time." 

It  must  be  borne  in  mind  that  Sections  3748  and  1242  of  the 
old  statutes  in  short  make  the  possession  of  such  property  of  the 
United  States  by  a  person  not  in  the  service  of  the  United  States, 
prima  facie  evidence  that  it  had  been  sold  or  pledged. 

Other  cases  bearing  upon  the  statute  in  its  entirety,  are  the 
following:  United  States  vs.  Daubner,  17  Federal,  793;  U.  S.  vs. 
Eussell,  19  Federal,  591 ;  U.  S.  vs.  Griswold,  24  Federal,  361 ;  U. 
S.  vs.  Frisbie,  28  Federal,  808 ;  U.  S.  vs.  Rhodes,  30  Federal,  431 ; 
U.  S.  vs.  Griswold,  30  Federal,  604,  also  same  Volume,  762 ;  U.  S. 
vs.  Eeichurt,  32  Federal,  142 ;  U.  S.  vs.  Jones,  32  Federal,  482 ; 
U.  S.  vs.  Eoute,  33  Federal,  246;  U.  S.  vs.  Gowdy,  37  Federal, 
332 ;  U.  S.  vs.  Wallace,  40  Federal,  144 ;  U.  S.  vs.  Newton,  48  Fed- 
eral, 218 ;  U.  S.  vs.  Strobach,  48  Federal,  902 ;  U.  S.  vs.  Adler,  49 
Federal,  733;  U.  S.  vs.  Van  Leuven,  62  Federal,  62;  U.  S.  vs. 
Hartman,  65  Federal,  490;  Rhodes  vs.  U.  S.,  79  Federal,  740; 
Dimmick  vs.  U.  S.,  116  Federal,  825;  U.  S.  vs.  Lair,  118  Federal, 
98;  Pooler  vs.  U.  S.,  127  Federal,  509;  Franklin  vs.  U.  S.,  U.  S. 
Sup.  Ct.,  Oct.,  1909,  term. 

In  Bridgeman  vs.  United  States,  140  Federal,  577,  the  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit  held  that  inasmuch  as  the 
statutory  provisions  and  rules  and  regulations  of  the  Indian  De- 
partment required  accounts  and  vouchers  for  claims  and  dis- 
bursements connected  with  Indian  affairs  to  be  transmitted  to  the 
Commissioner  of  Indian  Affairs,  that  a  transmission  to  such  com- 
missioner by  an  agent  of  the  Department,  of  a  false  voucher,  etc., 
was  an  offense  under  5438.  This  case  also  authorizes  the  use  of 
the  words  "making  and  presenting,"  as  was  considered  to  be  cor- 
rect in  the  cases  cited  above.  Two  of  the  counts  in  that  indict- 
ment are  set  out  in  the  decision  and  approved  by  the  Court,  as  is 
also  the  full  charge  of  the  trial'judge. 

§  180.  Embezzling  Arms,  Stores,  Etc. — As  a  companion  to  the 


218     OFFENSES  AGAINST   OPERATIONS  OF  THE  GOVERNMENT 

section  treated  above,  appears  Section  36  in  the  New  Code,  which 
displaces  old  Section  5439,  and  is  in  the  following  words: 

"Sec.  36.  Whoever  shall  steal,  embezzle,  or  knowingly  apply- 
to  his  own  use,  or  milawfully  sell,  convey,  or  dispose  of,  any  ord- 
nance, arms,  ammunition,  clothing,  subsistence,  stores,  money, 
or  other  property  of  the  United  States,  furnished  or  to  be  used 
for  the  military  or  naval  service,  shall  be  punished  as  prescribed 
in  the  preceding  section." 

As  somewhat  enlightening  upon  the  question  as  to  what  steps 
one  should  take  in  order  to  be  in  the  military  service  of  the  Uni- 
ted States,  may  be  read  the  case  of  Johnson  vs.  Sayre,  158  U.  S., 
109.  In  that  particular  case,  the  Court  held  that  a  postmaster's 
clerk  in  the  navy,  appointed  by  the  Secretary  of  the  Navy  with 
the  approval  of  the  President,  is  in  the  naval  service  of  the  United 
States ;  but  in  the  reasoning  of  the  opinion  will  be  found  a  num- 
ber of  authorities  and  reasons  that  apply  to  other  conditions. 

Section  36  above  quoted  occupies  the  same  position  to  Section 
35  as  old  Section  5439  did  to  old  Section  5438,  and,  therefore,  the 
observation  of  District  Judge  Swing,  in  the  case  of  United  States 
vs.  Murphy,  9  Federal,  page  26,  is  applicable  and  pertinent.  In 
that  case  the  indictment  was  draA^Ti  imder  Section  5439.  It  con- 
tained two  counts,  charging  that  the  defendant  had  applied  to  his 
own  use  an  overcoat,  which  had  been  issued  to  an  inmate  of  the 
National  ]\Iilitary  Home  at  Dayton,  to  be  used  by  him  for  the 
military  service  of  the  United  States.  A  demurrer  to  the  bill 
raised  the  question  whether  clothing  so  issued  to  inmates  of  that 
institution  was  within  the  prohibition  of  that  section.  The 
Court  said : 

"The  preceding  section  (5438)  prohibits  the  purchase  of  cloth- 
ing, etc.,  from  any  soldier  or  other  person  called  into  or  employed 
in  the  military  service  of  the  United  States,  such  soldier  or  person 
not  having  the  lawful  right  to  sell  the  same.  This  section  (5439) , 
then,  prohibits  any  person  from  knowingly  applying  to  his  own 
use  any  clothing  or  other  property  of  the  United  States,  furnished 
or  to  be  furnished  for  the  military  service.  Under  Section  5438, 
the  clothing  must  be  purchased  from  a  person  'in  the  military 
service';  under  Section  5439,  it  must  be  clothing  or  other  prop- 
erty of  the  United  States  'furnished  or  to  be  used  for  the  mili- 
tary service.'  The  indictment,  it  is  true,  charges  in  one  count 
that  the  overcoat  in  question  was  '  furnished  for  the  military  serv- 
ice,'  and  in  the  other  that  it  was  'to  be  used  for  the  military 


OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT     219 

service ' ;  but  in  each  it  appears  it  had  been  issued  to  an  inmate 
of  the  home.  It  is  claimed  in  argument  on  behalf  of  the  Govern- 
ment that  these  military  homes  are  a  part  of  the  military  estab- 
lishment, and  clothing  issued  to  the  inmates  is  furnished  and 
used  for  the  military  service.  It  is  clear  that  the  inmates  of  these 
homes  are  not  in  the  military  service.  It  is  not  claimed  that 
Section  5438  applies  to  the  purchase  of  clothing  from  them;  nor 
do  I  think  that  the  clothing  issued  to  them  is  used  in  the  military 
service  of  the  United  States.  Congress  could  probably  prohibit 
the  purchase  of  clothing  from  these  inmates,  and  punish  any  one 
applying  it  to  other  purposes  than  for  which  it  is  issued ;  but  the 
law  in  force  does  not  apply  to  it,  and  a  demurrer  must  be  sus- 
tained." 

§  181.  Conspiracies  to  Commit  Oflfenses  Against  the  United 
States;  All  Defendants  Liable  for  Acts  of  One. — One  of  the  most 
useful  and  comprehensive  statutes  in  the  old  revision  was  Section 
5440,  which  is  re-enacted  in  the  New  Code  in  Section  37,  in  the 
following  terms: 

"Sec.  37.  If  two  or  more  persons  conspire  either  to  commit 
any  offense  against  the  United  States,  or  to  defraud  the  United 
States  in  any  manner  or  for  any  purpose,  and  one  or  more  of 
such  parties  do  any  act  to  effect  the  object  of  the  conspiracy,  each 
of  the  parties  to  such  conspiracy  shall  be  fmed  not  more  than  ten 
thousand  dollars,  or  imprisoned  not  more  than  two  years,  or 
both." 

The  old  and  the  new  sections  are  practically  identical  with  the 
single  exception  that  there  is  no  minimum  pimishment  under  the 
latter.  Indictments  imder  this  statute  must  comprehend  in  alle- 
gation, not  only  whatever  averments  are  necessary  under  it,  but 
also  the  necessary  allegations  and  ingredients  of  the  offense  or 
statute  for  which  the  conspiracy  was  formed.  An  indictment  that 
fails  to  set  out  the  elements  of  the  offense  conspired  to  be  com- 
mitted is  bad.  A  conspiracy  as  commonly  understood,  is  a  cor- 
rupt agreeing  together  of  two  or  more  persons  to  do,  by  concerted 
action,  something  unlawful,  either  as  a  means  or  an  end.  The 
word  "corrupt,"  as  used,  means  unlawful.  The  intendment  of 
this  definition  is  that  to  conspire  to  do  an  unlawful  act;  or  to 
conspire  to  accomplish  a  result  which  may  in  itself  be  lawful, 
but  to  do  it  in  an  unlawful  manner ;  or  an  unlawful  agreement  to 
accomplish  an  unlawful  result,  are  conspiracies.     The  unlawful 


220     OFFENSES  AGAINST   OPERATIONS  OF  THE  GOVERNMENT 

combination  may  be  expressly  proven,  or  it  may  be  provable  from 
concerted  action  in  itself  unlawful.  If  one  join  the  conspiracy  at 
any  time  after  the  formation  of  the  conspiracy,  he  becomes  a  con- 
spirator, and  the  acts  of  the  others  become  his,  by  adoption. 

That  there  is,  or  may  be,  a  difference  between  the  punishment 
prescribed  in  this  section,  and  that  prescribed  in  the  statute  that 
the  conspiracy  was  formed  to  violate,  is  immaterial.  Congress 
has  the  power,  says  the  Supreme  Court  of  the  United  States,  in 
Clune  vs.  United  States,  159  U.  S.,  590,  to  enact  a  statute  making 
a  conspiracy  to  do  an  act  pimishable  more  severely  than  the  doing 
of  the  act  itself.  The  power  exists  to  separate  the  offenses,  and  to 
affix  distinct  and  independent  penalties  to  each. 

As  above  indicated,  there  need  be  no  proof  of  the  express  agree- 
ment. The  full  measure  of  the  law  is  met  if  the  facts  and  cir- 
cumstances indicate  with  the  requisite  lawful  certainty  the  ex- 
istence of  a  preconcerted  plan.  Reilley  vs.  United  States,  106 
Federal,  896;  U.  S.  vs.  Cassidy,  67  Federal,  698 ;  U.  S.  vs.  Barret, 
65  Federal,  62;  U.  S.  vs.  Wilson,  60  Federal,  890;  U.  S.  vs.  New- 
ton, 52  Federal,  275 ;  U.  S.  vs.  Sacia,  2  Federal,  754.  So,  under 
the  same  authorities,  it  need  only  be  shown  that  one  or  more  of 
the  overt  acts  charged  in  the  indictment  have  been  committed,  and 
that  they  were  done  in  furtherance  of  the  conspiracy.  Federal 
Statutes  Annotated,  Volume  2,  page  250. 

Text-books  and  courts  unite  in  the  proposition  that  where  there 
is  a  prima  facie  showing  of  conspiracy,  all  of  the  acts  done,  and 
all  of  the  declarations  made  in  pursuance  of  the  originally  con- 
certed plan,  and  with  reference  to  the  common  object,  by  any  one 
of  the  conspirators,  are  admissible  against  all.  The  rule,  how- 
ever, ceases  after  the  conspiracy,  has  been  ended ;  for,  upon  the 
completion  of  the  conspiracy,  acts  and  declarations  of  co-con- 
spirators are  evidence  only  against  the  one  so  acting  or  declaring. 
Logan  vs.  U.  S.,  144  U.  S.,  263. 

In  Taylor  vs.  U.  S.,  89  Federal,  954,  the  Court  of  Civil  Appeals 
for  the  Ninth  Circuit,  in  a  conspiracy  prosecution  against  certain 
defendants  for  entering  into  a  conspiracy  to  coimterfeit  and  utter 
counterfeit  coins  of  the  United  States,  the  Court  determined  that 
the  evidence  showing  that  one  of  the  defendants  resided  with  an- 
other of  the  conspirators  for  six  weeks,  during  which  time  the 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  221 

coins  were  made,  and  that  he  wrote  the  letter  ordering  the  ma- 
chine with  which  they  were  made,  and  that  after  the  arrest  he 
wrote  one  of  the  defendants  offering  to  assist  in  procuring  bail, 
was  entirely  siiiBcient  to  authorize  the  admission  against  him  of 
the  statements  of  his  co-conspirators.  In  that  case,  it  was  also 
determined  that  the  order  of  proof  rests  in  the  sound  discretion 
of  the  Court ;  in  other  words,  the  Court  was  not  bound  to  exclude 
evidence  of  declarations  until  the  prosecution  should  first  have 
shown  the  connection  of  the  defendant  with  the  offense.  1  Green- 
leaf,  Section  111 ;  6  Am.  and  Eng.  Enc.  of  Law,  Second  Ed.,  689 ; 
State  vs.  Winner,  17  Kansas.  298. 

§  182.  Sufficiency  of  Description. — In  Cling  vs.  United  States, 
118  Federal,  538,  the  Circuit  Court  of  Appeals  for  the  Fourth 
Circuit  held  that  the  offense  intended  to  be  committed  as  the  re- 
sult of  the  conspiracy  need  not  be  described  as  fully  as  would 
be  required  in  an  indictment  in  which  such  matter  was  charged 
as  a  substantive  crime.  To  the  same  effect  is  United  States  vs. 
Stevens,  44  Federal,  132.  In  United  States  vs.  Stamatopoulos, 
164  Federal,  524,  Judge  Chatfield,  in  passing  upon  a  demurrer, 
said : 

"The  indictment  sets  forth  a  conspiracy  to  defraud  the  United 
States,  and  it  is  unnecessary  to  allege  either  the  consummation  of 
the  fraud,  or  to  include  an  allegation  that  the  fraud  could  have 
been  accomplished  unless  detected.  It  is  sufficient  to  show  that 
the  conspiracy  so  to  do  the  act  charged  constituted  a  fraud  upon 
the  United  States." 

§  183.  Venue. — The  venue  for  the  prosecution  may  be  laid  in 
the  District  in  which  the  overt  act  was  committed,  and  it  does 
not  matter  where  the  conspiracy  was  formed  or  the  unlawful 
agreement  entered  into;  and  where  the  offense  has  been  com- 
menced in  one  district  and  consummated  in  another,  the  venue 
may  be  laid  and  the  trial  may  be  had  in  either  district. 

Sufficient  to  Warrant  Conviction. — If  the  indictment  alleges,  in 
proper  terms,  the  formation  of  the  conspiracy  for  either  one  of 
the  inhibited  purposes  mentioned  in  the  statute,  and  then  sets  out 
the  offense  for  which  the  conspiracy  was  formed  with  sufficient 
certainty  to  apprise  the  defendant  thereof,  and  then  the  proof 
shows  that  the  conspiracy  existed  as  charged  in  the  indictment, 


222     OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT 

and  that  if  such  conspiracy  existed,  the  overt  act  charged  was 
committed  in  furtherance  of  such  conspiracy,  and  that  the  de- 
fendant was  one  of  the  conspirators,  a  case  will  have  been  made 
out,  both  by  allegation  and  proof.  United  States  vs.  Cassidy,  67 
Federal,  698 ;  United  States  vs.  Newton,  52  Federal.  275. 

§  184.  Illustrative  Cases. — While  the  courts  have  held,  as  above 
cited,  that  a  good  conspiracy  charge  will  be  one  which  alleges 
the  accomplishment  of  the  fraud  or  fails  to  allege  its  accomplish- 
ment, so,  also,  they  have  held  that  a  conspiracy  may  be  charged, 
though  the  indictment  charges  the  accomplishment.  In  Scott  vs. 
United  States,  165  Federal,  172,  the  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit  held  that  an  indictment  will  lie  for  conspiracy 
to  remove  distilled  spirits  on  which  the  tax  had  not  been  paid,  in 
violation  of  Section  3296,  although  it  is  charged  that  the  purpose 
of  the  conspiracy  was  accomplished. 

In  United  States  vs.  Stevens,  44  Federal,  132,  it  was  held  that 
a  conspiracy  may  be  entered  into  even  when  the  overt  act  con- 
stituting the  criminal  offense  can  only  be  done  by  one  of  the 
parties  to  the  conspiracy ;  as  where  a  census  enumerator  and  an- 
other conspired  to  make  false  certificates  or  fictitious  returns. 
The  same  sort  of  an  offense  was  approved  in  the  Ching  case  by  a 
Circuit  Court  of  Appeals,  118  Federal,  538.  So,  also,  a  con- 
spiracy may  be  laid  against  a  person  not  connected  with  the  bank 
for  conspiring  with  the  cashier  to  commit  one  of  the  offenses  de- 
scribed in  Section  5209.  U.  S.  vs.  Martin,  4  Cliff.  (U.  S.),  156. 
And  in  United  States  vs.  Boyer,  4  Dill.,  407,  the  Court  held  that 
a  conspiracy  could  be  charged  against  persons  conspiring  with  a 
bankrupt  to  conunit  an  offense  thereunder,  even  if  it  could  be 
held  that  only  the  bankrupt  could  commit  the  offense  there 
charged  with  having  agreed  to  violate.  See  also  U.  S.  vs.  Swett, 
2  Hask.,  310,  28  Fed.  Cases  No.  16427. 

In  Johnson  vs.  United  States,  158  Federal,  69,  the  Circuit 
Court  of  Appeals  for  the  Fifth  Circuit,  it  seems  to  the  writer, 
held  contrary  to  the  above  views.  In  that  case,  the  bankrupt,  his 
trustee,  and  one  other,  were  indicted  for  conspiring  to  conceal 
from  the  Trustee,  one  of  the  indicted  parties,  assets  of  the  bank- 
rupt. There  were  convictions.  Upon  appeal,  the  Court  held  that 
an  indictment  will  not  lie  under  5440,  for  a  conspiracy  to  effect 


OFFENSES  AGAINST   OPEKATIONS.  OF   THE   GOVERNMENT     223 

the  concealment  by  a  bankrupt,  of  property,  from  his  trustee, 
where  the  trustee  is  himself  charged  as  one  of  the  conspirators 
and  the  averments  of  the  indictment  show  that  there  was  in  fact 
no  concealment  of  property  from  him,  and  no  purpose  that  there 
should  be  such  concealment.  In  considering  that  case,  the  Court 
cited  the  case  where  Lord  Audley  was  convicted  of  rape  upon  his 
wife ;  being  present,  aiding  and  abetting  one  of  his  minions  to 
perpetrate  this  monstrous  crime,  and  for  which  this  devil-crazed 
nobleman  was  hung;  but  differentiated  that  case  from  the  one 
they  were  discussing,  and  said : 

"The  defect  in  the  indictment  is  not  that  it  charges  a  con- 
spiracy by  three  persons  to  commit  an  offense  which  only  one  of 
the  three  could  commit.  That  may  not  be  a  defect.  The  fatal 
defect  is  that  it  charges  Johnson,  one  of  the  alleged  conspirators, 
with  participation  in,  and  knowledge  of,  a  transaction  which 
could  only  be  an  offense  against  the  law  when  it  was  concealed 
from  him." 

In  United  States  vs.  Melfi,  118  Federal,  899,  there  was  a  prose- 
cution against  conspirators  to  secure,  illegally,  naturalization  pa- 
pers, but  the  Court  held  against  the  indictment,  not  because  such 
a  conspiracy  would  not  be  unlawful,  but  because  the  indictment 
failed  to  allege  sufficient  ingredients  of  the  statute  for  the  break- 
ing of  which  the  conspiracy  was  formed. 

In  United  States  vs.  Clark,  164  Federal,  page  75,  the  Court 
upheld  a  prosecution  against  an  agent  of  a  railroad  company  and 
others  for  conspiring  to  issue  interstate  freight  passes  in  the 
name  of  the  railroad  to  those  not  entitled  thereto,  under  the  pro- 
visions of  the  Hepburn  Act,  June  29,  1906. 

In  United  States  vs.  Lonabaugh,  158  Federal,  314,  a  prosecu- 
tion was  sustained  upon  a  conspiracy  to  induce  the  Land  Depart- 
ment of  the  United  States,  by  fraudulent  means,  to  dispose  of 
public  lands  in  a  way  not  authorized  by  the  statute,  and  this  even 
though  the  Government  received  payment  for  the  lands,  and  suf- 
fered no  pecimiary  loss. 

In  United  States  vs.  Haas  et  al,  163  Federal,  908,  an  indictment 
was  sustained  which  charged  a  confederated  effort  to  deprive  the 
national  government  of  the  right  and  privilege  of  proper  service 
in  the  Department  of  Agriculture,  by  corrupting  an  employee  of 


224  OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT 

such  department,  and  inducing  him  to  secretly  furnish  advance 
information  of  crop  conditions,  contrary  to  the  rules  of  the  de- 
partment, and  to  issue  false  reports  to  the  public  as  to  such  con- 
ditions. The  main  offense  in  that  case  was  laid  under  the  bribery 
statute,  5451,  and  the  Court  held  that  an  Assistant  Statistician 
in  the  Department  of  Agriculture,  in  the  performance  of  the  du- 
ties with  which  he  was  charged  by  the  rules  of  that  department, 
acted  for  the  United  States  in  an  official  function.  This  case  was 
practically  affirmed,  and  the  case  of  United  States  vs.  Haas,  167 
Federal,  211,  overruled,  by  the  Supreme  Court  of  the  United 
States  in  Haas  vs.  Henkle,  February  21,  1910.  The  Supreme 
Court,  in  passing  directly  upon  the  indictment,  uses  this  lan- 
guage: 

' '  These  counts  do  not  expressly  charge  that  the  conspiracy  in- 
cluded any  direct  pecuniary  loss  to  the  United  States;  but  as  it 
is  averred  that  the  acquiring  of  the  information  and  its  intelligent 
computation,  with  deductions,  comparisons,  and  explanations,  in- 
volved great  expense,  it  is  clear  that  practices  of  this  kind  would 
deprive  these  reports  of  most  of  their  value  to  the  public,  and 
degrade  the  Department  in  general  estimation,  and  that  there 
would  be  a  real  financial  loss.  But  it  is  not  essential  that  such  a 
conspiracy  should  contemplate  a  financial  loss,  or  that  one  should 
result.  The  statute  is  broad  enough  in  its  terms  to  include  any 
conspiracy  for  the  purpose  of  impairing,  obstructing,  or  defeat- 
ing the  lawful  function  of  any  Department  of  the  Government. 
Assuming,  as  we  have,  for  it  has  not  been  challenged,  that  this 
statistical  side  of  the  Department  of  Agriculture  is  the  exercise 
of  a  function  within  the  purview  of  the  Constitution,  it  must 
follow  that  any  conspiracy  which  is  calculated  to  obstruct  or  im- 
pair its  efficiency  and  destroy  the  value  of  its  operations  and  re- 
ports, as  fair,  impartial,  and  reasonably  accurate,  w^ould  be  to 
defraud  the  United  States,  by  depriving  it  of  its  lawful  right  and 
duty  of  promulgating  or  diffusing  information  so  officially  ac- 
quired in  the  way  and  at  the  time  required  by  law  or  Depart- 
mental regulation.  That  it  is  not  essential  to  charge  or  prove  an 
actual  financial  or  property  loss  to  make  a  case  under  the  statute, 
has  been  more  than  once  ruled.  Hyde  vs.  Shine,  199  U.  S.,  62; 
tJ.  S.  vs.  Keitel,  211  U.  S.,  370;  Curley  vs.  U.  S.,  130  Fed.,  1; 
McGregor  vs.  U.  S.,  134  Fed.,  195." 

In  United  States  vs.  Hirsch,  100  U.  S.,  33,  the  Supreme  Court 
held  that  a  conspiracy  to  defraud  the  United  States  out  of  du- 
ties on  imported  merchandise  is  not  a  crime  arising  under  the 


OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT     225 

revenue  laws,  and  is,  therefore,  barred  by  the  three  years  statute 
of  limitations. 

For  other  cases  arising  under  the  old  section,  see 

United  States  vs.  Dietrich,  126  Federal,  664. 

Gantt  vs.  U.  S.,  108  Federal,  page  61 ; 

U.  S.  vs.  Bradford.  148  Fed.,  413; 

U.  S.  vs.  Mitchell,  141  Fed.,  666 ; 

Wright  vs.  United  States,  108  Fed..  805  (This  case  approves  a 
general  form  of  indictment)  ;  Lehman  vs.  U.  S.,  127  Federal,  41 ; 
Conrad  vs.  U.  S.,  127  Fed.,  798  (That  was  a  conspiracy  to  violate 
Section  3995,  or  in  other  words,  a  conspiracy  to  knowingly  and 
wilfully  delay  the  United  States  mail)  ;  Wan  Din  vs.  United 
States,  135  Fed.,  704,  (The  Court  sets  out  the  elements  of  the 
conspiracy)  ;  United  States  vs.  Curley,  122  Fed.,  738 ;  affirmed  in 
130  Fed.,  page  2  (This  was  a  conspiracy  to  violate  the  Civil 
Service  Examination  Act)  ;  U.  S.  vs.  Richards,  149  Fed.,  443.  In 
Crawford  vs.  U.  S.,  an  opinion  rendered  by  the  Supreme  Court 
of  the  United  States,  on  February  1,  1909,  sets  forth  the  elements 
of  a  conspiracy  under  this  section.  In  i)i  re  Miller,  114  Federal, 
963.  there  was  a  prosecution  for  conspiracy  to  return  one.  to 
peonage.  See  United  States  vs.  Green.  115  Federal,  343,  for  con- 
spiring to  conceal  assets  in  violation  of  the  Bankrupt  Act ;  United 
States  vs.  Goodsay,  164  Federal,  157 ;  United  States  vs.  Biggs, 
157  Federal,  264;  United  States  vs.  Brace,  149  Fed.,  874.  The 
case  of  Bradford  vs.  United  States,  129  Federal,  page  49,  was  a 
prosecution  for  conspiring  to  execute  straws  bail.  In  the  case  of 
United  States  vs.  Stevenson,  decided  by  the  Supreme  Court  of  the 
United  States  in  November,  1909,  a  conviction  for  a  conspiracy 
to  violate  the  Immigration  Act  was  sustained. 

In  Williamson  vs.  U.  S.,  207  U.  S.,  425,  52  Law  Ed.,  page  207, 
the  Supreme  Court  reversed  and  remanded  a  conviction  of  a  Con- 
gressman for  conspiring  to  suborn  perjury,  in  proceedings  to 
purchase  public  land,  but  held  among  other  things,  that  an  indict- 
ment alleging  a  conspiracy  to  suborn  perjury  need  not,  with 
technical  precision,  state  all  the  elements  essential  to  the  com- 
mission of  the  crimes  of  subornation  of  perjury  and  of  perjury, 
and  that  the  precise  persons  to  be  suborned,  or  the  time  and  place 
of  such  suborning  need  not  be  agreed  upon  in  the  minds  of  the 


226     OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT 

conspirators,  in  order  to  constitute  the  crime  of  conspiracy  to 
suborn  f)erjury  in  proceedings  for  the  purchase  of  public  land. 
U.  S.  vs.  Railey,  173  Federal,  159 ;  Richards  vs.  U.  S.,  175  Fed., 
911;  U.  S.  vs.  Kane,  23  Fed.,  748;  U.  S.  vs.  Milner,  36  Fed.,  890. 
In  United  States  vs.  Keitel,  211  U.  S.,  370,  the  Supreme  Court 
held  that  a  charge  of  conspiracy  to  defraud  the  United  States  can 
be  predicated  on  acts  made  criminal  after  the  enactment  of  the 
statute.  This  case  was  reversed,  on  some  other  minor  points, 
United  States  vs.  Keitel,  157  Fed.,  396.  In  United  States  vs. 
Biggs,  211  U.  S.,  which  Avas  a  writ  of  error  by  the  United  States 
from  the  sustaining  of  a  demurrer  to  an  indictment  brought  for  a 
conspiracy  to  defraud  the  United  States  of  public  lands,  reported 
in  United  States  vs.  Biggs,  157  Fed.,  264,  the  Supreme  Coilrt 
affirmed  the  decision  of  the  lower  Court,  and  held  that  an  in- 
dictment for  conspiracy  to  defraud  the  United  States  by  im- 
properly obtaining  title  to  public  lands,  will  not  lie  under  5440, 
where  the  only  acts  charged  were  permissible  under  the  land  laws. 
In  other  words,  the  acts  charged  in  the  indictment  appeared  to 
be  lawful  under  the  laws  relating  to  such  lands.  United  States 
vs.  Briton,  108  U.  S.,  192 ;  Mackin  vs.  U.  S.,  117  U.  S.,  348 ;  U.  S. 
vs.  Hess,  124  U.  S.,  483 ;  in  re  Coy,  312  Fed.,  794;  127  U.  S.,  731 ; 
U.  S.  vs.  Perrin,  131  U.  S.,  55;  U.  S.  vs.  Barber,  140  U.  S.,  177; 
Pettibone  vs.  U.  S.,  148  U.  S.,  197 ;  ex  parte  Lennon,  150  U.  S., 
393;  Dill  vs.  U.  S.,  152  U.  S.,  539;  Bannon  vs.  U.  S.,  156  U.  S., 
464;  Stokes  vs.  U.  S.,  157  U.  S.,  187;  France  vs.  U.  S.,  164  U.  S., 
696.  In  the  case  of  Crawford  vs.  U.  S.,  212  U.  S.,  page  183,  the 
Supreme  Court  sustained  the  sufficiency  of  the  indictment,  but 
reversed  the  case  on  other  points.  The  prosecution  grew  out  of  a 
conspiracy  between  the  defendant  and  a  Grovernment  official,  by 
which  the  Government  would  be  defrauded  by  means  of  a  eon- 
tract  between  the  Postal  Device  and  Lock  Company,  a  corpora- 
tion, and  the  Post-office  Department  of  the  United  States,  by 
which  the  company  was  to  furnish  certain  satchels  to  the  De- 
partment for  the  use  of  the  letter  carriers  in  the  free  delivery 
system  of  the  United  States.  U.  S.  vs.  Bridgeman,  140  Federal, 
577;  U.  S.  Vs.  Marx,  122  Fed.,  964;  U.  S.  vs.  McKinley,  126  Fed., 
242;  U.  S.  vs.  Wilson,  60  Fed.,  890;  U.  S.  vs.  Debs,  63  Fed.,  436; 
Huntington  vs.  U.  S.,  175  Fed.,  950. 


OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT      227 

§  185.  Bribery  of  United  States  Officer. — Section  5451  of  the  old 
statutes  is  re-enaeted  into  Section  39  of  the  New  Code  in  the 
following  words: 

"Whoever  shall  promise,  offer,  or  give,  or  cause  or  procure  to 
be  promised,  offered,  or  given,  any  money  or  other  thing  of  value, 
or  shall  make  or  tender  any  contract,  imdertaking,  obligation, 
gratuity,  or  security  for  the  payment  of  money,  or  for  the  delivery 
or  conveyance  of  anything  of  value,  to  any  officer  of  the  United 
States,  or  to  any  person  acting  for  or  on  behalf  of  the  United 
States  in  any  official  fmiction,  under  or  by  authority  of  any  de- 
partment or  office  of  the  Government  thereof,  or  to  any  officer  or 
person  acting  for  or  on  behalf  of  either  House  of  Congress,  or 
of  any  Committee  of  either  House,  or  both  Houses  thereof,  with 
intent  to  influence  his  decision  or  action  on  any  question,  matter, 
cause,  or  proceeding  which  may  at  any  time  be  pending,  or 
which  may  by  law  be  brought  before  him  in  his  official  capacity, 
or  in  his  place  of  trust  or  profit,  or  with  intent  to  influence  him 
to  commit,  or  aid  in  committing,  or  to  collude  in,  or  allow,  any 
fraud,  or  make  opportunity  for  the  commission  of  any  fraud,  on 
the  United  States,  or  to  induce  him  to  do  or  omit  to  do  any  act 
in  violation  of  his  lawful  duty,  shall  be  fined  not  more  than  three 
times  the  amount  of  money  or  value  of  the  thing  so  offered,  prom- 
ised, given,  made,  or  tendered,  or  caused  or  procured  to  be  so 
offered,  promised,  given,  made,  or  tendered,  and  imprisoned  not 
more  than  three  years. ' ' 

One  must  be  a  Federal  official  or  some  other  person  performing 
an  official  function,  and  he  must  be  offered  some  gratuity  or  thing 
of  value  to  assist  in  the  defrauding  of  the  United  States  in  some 
manner,  or  to  fail  to  perform  his  lawful  duty,  before  he  can 
be  guilty  of  the  crime  alleged  in  the  foregoing  section.  For  in- 
stance, in  the  case  of  the  United  States  vs.  Gibson,  47  Federal, 
833,  the  Court  quashed  an  indictment  under  this  section,  which 
set  out  in  substance  that  the  defendant  had  offered  a  bribe  to  an 
internal  revenue  oi^cer  to  set  fire  to  a  distillery  within  the  limits 
of  a  State.  He  very  properly  held  that  this  was  the  offering  of 
a  bribe  to  perform  an  act  which  was  not  in  any  sense  within  the 
official  function  of  the  revenue  officer,  and,  therefore,  not  an  of- 
fense imder  the  section.  The  crime  of  arson,  of  course,  unless 
committed  upon  some  Government  reservation,  is  not  cognizable 
in  the  United  States  Courts,  and  is  not  a  United  States  offense. 
So,  also,  in  the  case  of  United  States  vs.  Boyer,  it  was  determined 


228     OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVEENMENT 

that  an  Inspector  of  the  Agriculture  Department  of  the  United 
States,  charged  with  the  enforcement  of  unconstitutional  regu- 
lations, and  offered  a  ])ribe  not  to  perform  such  regulations,  the 
ottering  of  such  a  bribe  was  not  an  ott'ense  under  54:51,  for  the 
reason  that  the  Inspector,  in  the  failure  to  perform  an  unconsti- 
tutional duty,  would  not  in  any  sense,  defraud  the  United  States, 
nor  fail  to  perform  an  act  which  it  was  his  lawful  duty  to  per- 
fovm.  In  United  States  vs.  Kessel,  62  Federal,  57,  and  United 
States  vs.  Van  Leuven,  62  Federal,  62,  District  Judge  Shiras,  in 
passing  upon  old  section  5501.  determined  that  a  member  of  a 
Board  of  Examining  Surgeons  is  a  person  acting  in  behalf  of  the 
United  States  in  an  official  capacity,  and,  therefore,  subject  to  an 
indictment  for  receiving  a  bribe.  The  same  reasoning  adopted  by 
the  judge  in  those  two  cases  will  apply  to  offenses  under  Section 
5451. 

The  case  of  United  States  vs.  Ingham,  97  Federal,  985,  was  a 
prosecution  based  upon  an  attempt  to  bribe  a  Secret  Service  oper- 
ative employed  by  the  Secretary  of  the  Treasury;  and  in  passing 
directly  upon  the  question  as  to  whether  or  not  such  operative 
was  an  officer  of  the  United  States  within  the  necessary  meaning 
of  5451,  the  Court  held  that  he  was  not  such  an  officer,  but  that 
the  prosecution  would  lie  under  the  phrase  in  the  statute,  "official 
function,''  and  held  that  official  function,  as  spoken  of  in  the 
statute  is  not  necessarily  a  function  belonging  to  an  office  held  by 
a  person  acting  on  behalf  of  the  United  States.  It  may  also  be  a 
function  belonging  to  an  office  held  by  his  superior  which  func- 
tion has  been  committed  to  the  subordinate,  whether  he  be  also 
an  officer  or  a  mere  employee  for  the  purpose  of  executing  the 
function. 

In  the  case  of  Ignited  States  vs.  Green,  136  Federal,  618,  the 
doctrine  was  announced  that  the  giving  of  a  check  as  a  bribe  will 
not  necessarily  be  an  offense  under  the  statute,  unless  there  be 
sufficient  allegations  in  the  indictment  to  show  that  the  check  was 
good,  and  that  the  bank  upon  which  it  was  drawn  was  a  going 
concern,  and  that  the  same  would  be  honored,  and  other  allega- 
tions to  show  that  as  a  matter  of  fact  the  check  was  valuable.  A 
bank  check  not  thus  defined  in  the  bill  of  indictment  is  not  an 
obligation  for  the  payment  of  money,  within  the  legal  meaning 


OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT     229 

of  such  term,  as  used  in  the  section,  and  the  tendering  by  a  per- 
son of  his  personal  check,  drawn  on  a  bank,  and  payable  to  an 
officer  of  the  United  States  to  such  officer,  with  intent  thereby  to 
affect  his  official  action,  does  not  constitute  the  crime  of  bribery , 
since  the  check  made  and  delivered  for  such  illegal  purpose  is 
void  and  not  within  any  of  the  classes  of  instruments  enumerated 
in  the  statute.  In  the  case  of  Vernon  vs.  U.  S.,  146  Fed.,  121,  the 
Circuit  Court  of  Appeals  for  the  Eighth  Circuit  sets  out  a  count 
of  an  indictment  under  this  section.  That  was  a  prosecution  for 
an  alleged  attempt  to  bribe  an  agent  of  the  Treasury  Department, 
charged  with  the  location  of  public  buildings.  The  evidence, 
however,  was  held  to  be  insufficient  by  the  Court  of  Appeals. 

The  Supreme  Court,  in  the  case  of  Palliser  vs.  United  States, 
136  U.  S.,  268;  34  Law  Ed.,  514,  held  that  a  letter  written  and 
sent  from  New  York  to  a  postmaster  in  Connecticut,  asking  him 
to  put  postage  stamps  on  circulars  and  send  them  out  at  the  rate 
of  fifty  to  one  himdred  dail3^  and  promising  him  that  if  he  would 
do  so,  the  writer  of  the  letter  would  remit  to  him  the  price  of 
stamps,  was  a  tender  of  a  contract  for  the  payment  of  money  to 
induce  him  to  sell  postage  stamps  for  credit  in  violation  of  his 
lawful  duty,  and  contrary  to  Section  5451 ;  and  such  an  offer  for 
an  unlawful  sale  of  postage  stamps  on  credit  is  not  the  less  within 
the  statute  because  the  postmaster's  commission  on  the  sale 
would  be  no  greater  than  upon  a  lawful  sale  for  cash. 

§  186.  Unlawfully  Taking  or  Using  Papers  Relating  to  Claims. — 
Section  40  reads  as  follows : 

' '  Sec.  40.  Whoever  shall  take  and  carry  aAvay.  without  author- 
ity from  the  United  States,  from  the  place  where  it  has  been 
filed,  lodged,  or  deposited,  or  Avhere  it  may  for  the  time  being 
actually  be  kept  by  authority  of  the  United  States,  anv  certificate, 
affidavit,  deposition,  written  statement  of  facts,  power  of  attor- 
ney, receipt,  voucher,  assignment,  or  other  document,  record,  file, 
or  paper,  prepared,  fitted,  or  intended  to  be  used  or  presented  in 
order  to  procure  the  payment  of  money  from  or  by  the  United 
States,  or  any  officer  or  agent  thereof,  or  the  allowance  or  pay- 
ment of  the  whole  or  any  part  of  any  claim,  account,  or  demand 
against  the  United  States,  whether  the  same  has  or  has  not  al- 
ready been  so  used  or  presented,  and  whether  such  claim,  account, 
or  demand,  or  any  part  thereof,  has  or  has  not  already  been  al- 
lowed or  paid ;  or  whoever  shall  present,  use,  or  attempt  to  use. 


230     OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT 

any  such  document,  record,  file,  or  paper  so  taken  and  carried 
away,  in  order  to  procure  the  payment  of  any  raonev  from  or  by 
the  United  States,  or  any  officer  or  agent  thereof,  or  the  allowance 
or  payment  of  the  whole  or  any  part  of  any  claim,  account,  or  de- 
mand against  the  United  States,  shall  be  fined  not  more  than  five 
thousand  dollars,  or  imprisoned  not  more  than  ten  years,  or 
both." 

§  187.  Persons  Interested  Not  to  Act  as  Agents  of  the  Govern- 
ment.— Section  1783  of  the  old  statutes  becomes  Section  41  of  the 
New  Code  in  the  following  words: 

"Sec.  41.  No  officer  or  agent  of  any  corporation,  joint  stock 
company,  or  association,  and  no  member  or  agent  of  any  firm,  or 
person  directly  or  indirectly  interested  in  the  pecuniary  profits 
or  contracts  of  such  corporation,  joint  stock  company,  association, 
or  firm,  shall  be  employed  or  shall  act  as  an  officer  or  agent  of  the 
United  States  for  the  transaction  of  business  with  such  corpora- 
tion, joint  stock  company,  association,  or  firm.  "Whoever  shall 
violate  the  provision  of  this  section  shall  be  fined  not  more  than 
two  thousand  dollars  and  imprisoned  not  more  than  two  years." 

Old  Section  1783  applied  only  to  officers  of  ''banking  or  other 
commercial"  corporations,  but  in  the  new  statute  these  words 
have  been  omitted,  so  that  the  section,  as  it  now  stands,  is  appli- 
cable to  the  officers  of  any  corporation.  It  has  likew^ise  been  made 
more  comprehensive,  in  that  it  now  covers  officers  and  agents  of 
any  "joint  stock  company  or  association." 

§  188.  Enticing  Desertions  from  the  Military  or  Naval  Service. — 
Section  42  of  the  New  Code  re-enacts  the  substantial  provisions 
of  Sections  1553  and  5455  of  the  Old  Code  in  the  following  words : 

"Sec.  42.  Whoever  shall  entice  or  procure,  or  attempt  or  en- 
deavor to  entice  or  procure,  any  soldier  in  the  military  service,  or 
any  seaman  or  other  person  in  the  naval  service  of  the  United 
States,  or  who  has  been  recruited  for  such  service,  to  desert 
therefrom,  or  shall  aid  any  such  soldier,  seaman,  or  other  person 
in  deserting  or  in  attempting  to  desert  from  such  service;  or 
whoever  shall  harbor,  conceal,  protect,  or  assist  any  such  soldier, 
seaman,  or  other  person  who  may  have  deserted  from  such  serv- 
ice, knowing  him  to  have  deserted  therefrom,  or  shall  refuse  to 
give  up  and  deliver  such  soldier,  seaman,  or  other  person  on  the 
demand  of  any  officer  authorized  to  receive  him,  shall  be  im- 
prisoned not  more  than  three  years  and  fined  not  more  than  two 
thousand  dollars." 

The  only  substantial  addition  is  the  word  "seaman,"  which  the 


OFFENSES  AGAINST  OPEEATIONS  OF  THE  GOVERNMENT  231 

old  statutes  did  not  include.  In  the  ease  of  Kurtz  vs.  Moffitt,  115 
U.  S.,  487,  the  Supreme  Court  held  that  a  deserter  from  the 
United  States  army  could  not  be  arrested  by  a  police  officer  or 
private  citizen  without  warrant  or  authority  from  the  United 
States. 

§  189.  Enticing  Away  Workman. — Section  43  of  the  New  Code 
re-enacts  the  provisions  of  Sections  1668  of  the  old  statutes,  add- 
ing thereto  the  word  "artificer"  instead  of  the  word  "armorer," 
and  is  in  the  following  words : 

"Sec.  43.  "Whoever  shall  procure  or  entice  any  artificer  or 
workman  retained  or  employed  in  any  arsenal  or  armory,  to  de- 
part from  the  same  during  the  continuance  of  his  engagement, 
or  to  avoid  or  break  his  contract  with  the  United  States ;  or  who- 
ever, after  due  notice  of  the  engagement  of  such  workman  or  ar- 
tificer, during  the  continuance  of  such  engagement,  shall  retain, 
hire,  or  in  anywise  employ,  harbor,  or  conceal  such  artificer  or 
workman,  shall  be  fined  not  more  than  fifty  dollars,  or  imprisoned 
not  more  than  three  months,  or  both." 

§  190.  Injuries  to  Fortifications,  Harbor  Defenses,  Etc. — Section 
44  of  the  New  Code  re-enacts  the  meat  of  the  Act  of  July  7,  1898 ; 
Second  Supplement,  885,  and  simplifies  the  original  Act  by  omit- 
ting the  words  "wantonly  or  maliciously"  before  "trespass," 
since  authorities  are  a  unit  that  the  word  "wilful"  will  include 
any  wanton  or  malicious  act,  and  is  in  the  following  words : 

"Sec.  44.  Whoever  shall  willfully  trespass  upon,  injure,  or 
destroy  any  of  the  works  or  property  or  material  of  any  submarine 
mine  or  torpedo,  or  fortification  or  harbor-defense  system  owned 
or  constructed  or  in  process  of  construction  by  the  United  States, 
or  shall  willfully  interfere  with  the  operation  or  use  of  any  such 
submarine  mine,  torpedo,  fortification,  or  harbor-defense  system, 
shall  be  fined  not  more  than  five  thousand  dollars,  or  imprisoned 
not  more  than  five  years,  or  both." 

§  191.  Unlawfully  Entering  Upon  Military  Reservation,  Fort, 
Etc. — Section  45  of  the  New  Code  is  an  entirely  new  Act,  and  is 
in  the  following  words : 

"Sec.  45.  Whoever  shall  go  upon  any  military  reservation, 
army  post,  fort,  or  arsenal,  for  any  purpose  prohibited  by  law  or 
military  regulation  made  in  pursuance  of  law,  or  whoever  shall 
re-enter  or  be  found  within  any  such  reservation,  post,  fort,  or 
arsenal,  after  having  been  removed  therefrom  or  ordered  not  to 
re-enter  by  any  officer  or  person  in  command  or  charge  thereof, 


232     OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT 

shall  be  fined  not  more  than  five  hundred  dollars,  or  imprisoned 
not  more  than  six  months,  or  both. ' ' 

§  192.  Robbery  or  Larceny  of  Personal  Property  of  the  United 
States. — Old  Section  5456  is  re-enacted  into  new  Section  46,  in 
the  following  words: 

"See.  46.  Whoever  shall  rob  another  of  any  kind  or  descrip- 
tion of  personal  property  belonging  to  the  United  States,  or  shall 
feloniously  take  and  carry  away  the  same,  shall  be  fined  not  more 
than  five  thousand  dollars,  or  imprisoned  not  more  than  ten  years, 
or  both." 

In  the  case  of  Jolly  vs.  United  States,  170  Federal,  402 ;  42 
Law  Ed.,  185,  the  Supreme  Court  held  that  there  are  two  dis- 
tinct offenses  mentioned  in  the  statute :  one  is  the  offense  of  rob- 
bery, and  the  other  is  the  crime  of  feloniously  taking  and  carry- 
ing away  any  kind  or  description  of  personal  propertj^  belonging 
to  the  United  States.  This  is  a  distinct  and  separate  offense  from 
that  of  robbery.  "If  the  statute  required  the  taking  to  be  forci- 
ble in  all  cases,  the  language  providing  against  the  felonious  tak- 
ing and  carrying  away  of  the  personal  property  of  the  United 
States  would  be  surplusage,  the  forcible  taking  being  already  im- 
plied and  included  in  the  use  of  the  word  'rob';  but  in  addition 
to  robbery,  the  offense  of  feloniously  (not  forcibly)  taking  the 
personal  property  of  the  United  States,  is  created." 

Postage  stamps  wdiich  have  not  been  issued  or  sold,  and  are  in 
the  possession  of  the  Government,  are  personal  property  belonging 
to  the  United  States  within  the  meaning  of  this  section,  which 
makes  it  a  crime  to  feloniously  take  and  carry  away  such  prop- 
erty. 

Under  the  authority  of  United  States  vs.  Jones,  69  Federal, 
973,  a  count  under  this  statute  may  be  joined  with  a  count  under 
another  statute  for  a  separate  offense,  when  the  offense  is  the 
same  transaction.  In  that  case.  Judge  Hawley  held  that  it  was 
immaterial  that  one  might  be  classed  as  larceny  and  the  other  as 
embezzlement,  or  that  the  punishment  was  different.  That  case 
also  gives  a  form  of  indictment. 

§  193.  Embezzling,  Stealing,  Etc.,  Public  Property. — New  Sec- 
tion 47  re-enacts  a  part  of  the  Act  of  March  3.  1875;  First  Sup- 
plement, page  88,  in  the  following  words : 

"Sec.  47.     "Whoever  shall  embezzle,  steal,  or  purloin  any  mon- 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  233 

ey,  property,  record,  voucher,  or  valuable  thing  whatever,  of  the 
moneys,  goods,  chattels,  records,  or  property  of  the  United  States, 
shall  be  fined  not  more  than  five  thousand  dollars,  or  imprisoned 
not  more  than  five  years,  or  both. ' ' 

In  drafting  indictments  for  the  various  offenses  created  by  this 
section,  to  wit,  the  offenses  of  embezzlement,  larceny,  and  pur- 
loining, it  is  believed  that  it  w^ill  be  necessary  to  set  out  the  ele- 
ments of  these  particular  offenses  as  understood  in  the  Common 
Law,  for  the  reason  that  the  statute  itself  does  not  specify  just 
what  acts  shall  constitute  the  offense  therein  denominated.  The 
cases  of  Moore  vs.  United  States,  160  U.  S.,  268;  40  Law  Ed.. 
422,  and  Faust  vs.  United  States,  163  U.  S.,  452;  41  Law  Ed., 
page  224,  will  be  instructive  in  determining  the  principles  that 
must  be  adhered  to  in  setting  out  offenses  under  this  statute. 
For  the  crime  of  embezzlement,  of  course,  the  indictment  must  al- 
lege that  the  sum  alleged  to  have  been  embezzled  came  into  the 
possession  of  the  defendant  in  the  capacity  in  which  he  was  an 
employee  of  the  United  States ;  that  is,  as  assistant,  clerk,  or  em- 
ployee in  whatever  department  of  the  Government  he  served. 
Want  of  consent  of  the  postmaster  to  embezzlement  of  money- 
order  funds  by  his  assistant  is  not  necessary  to  to  make  the  latter 
liable  for  the  crime,  under  the  authority  of  Faust  vs.  United 
States,  cited  supra. 

It  was  held  in  Dimmick  vs.  United  States,  135  Federal,  257, 
that  an  indictment  which  charged  the  defendant  with  stealing 
money  "belonging  to"  the  United  States  sufficiently  averred  the 
ownership  of  the  property  stolen. 

Of  course,  it  is  necessary  to  allege  specific  intent  before  the  of- 
fenses here  denominated  shall  be  properly  plead.  As  was  well 
said  in  United  States  vs.  De  Groat,  30  Federal.  764,  the  Federal 
Criminal  Jurisprudence  is  entirely  destitute  of  any  substratum 
of  a  Common  Law  of  crimes  and  misdemeanors  upon  which  to 
draw  for  supplying  elements  of  the  offense,  and  the  Courts  look 
only  at  the  statute,  using  the  Common  Law.  if  necessary,  to  fur- 
nish a  definition  of  the  terms  used,  but  never  any  ingredient  of 
the  offense.  That  case  will  be  recalled  as  an  indictment  for  hav- 
ing stolen  papers  which  were  public  records,  but  the  facts  showed 
that  they  were  stolen  from  a  barn  where  they  were  stored,  under 


2:U  OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT 

the  belief  that  they  were  old  papers,  and  without  knowledge  of 
the  fact  that  they  were  public  records,  and  the  Court  ordered  a 
verdict  of  not  guilty. 

§  194.  Receivers,  Etc.,  of  Stolen  Public  Property. — Section  48 
of  the  New  Code  enacts  the  substantial  features  of  the  Act  of 
March  3.  1875;  First  Supplement,  88.  and  is  in  the  following 
words : 

"Sec.  48.  Whoever  shall  receive,  conceal,  or  aid  in  concealing 
or  shall  have  or  retain  in  his  possession  with  intent  to  convert 
to  his  own  use  or  gain,  any  money,  property,  record,  voucher,  or 
valuable  thing  whatever,  of  the  moneys,  goods,  chattels,  records, 
or  property  of  the  United  States,  which  has  theretofore  been  em- 
bezzled, stolen  or  purloined  by  any  other  person,  knowing  the 
same  to  have  been  so  embezzled,  stolen  ,or  purloined,  shall  be 
fined  not  more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both ;  and  such  person  may  be  tried  either  be- 
fore or  after  the  conviction  of  the  principal  offender. ' ' 

This  statute  leaves  out  that  provision  of  the  old  statute  which 
made  the  judgment  of  conviction  of  the  principal  conclusive  evi- 
dence in  the  porsecution  against  such  receiver.  That  provision 
was  declared  to  be  unconstitutional  by  the  Supreme  Court  in  the 
case  of  Kirby  vs.  United  States,  174  U.  S.,  47 ;  Book  43  Law  Ed., 
page  890.  In  that  case,  the  Supreme  Court  held  that  the  pro- 
vision that  the  judgment  of  conviction  against  the  principal 
felons  shall  be  evidence  in  the  prosecution  against  the  receiver  of 
the  property  of  the  United  States  alleged  to  have  been  embezzled, 
stolen,  or  purloined,  is  in  violation  of  the  clause  of  the  United 
States  Constitution  that  in  criminal  prosecutions  the  accused  shall 
be  confronted  with  the  witnesses  against  him. 

Allegations  of  Owliership, — Under  the  authority  of  the  Kirby 
case,  cited  above,  it  is  sufficient  if  an  indictment  for  receiving 
stolen  property  of  the  United  States  alleges  its  ownership  when 
it  was  feloniously  received  by  the  accused,  by  alleging  that  the 
property  was  that  of  the  United  States  when  stolen,  and  was 
stolen  two  days  previously  to  its  being  received  by  the  defendant, 
and  that  he  received  it  knowing  that  it  had  been  stolen.  It  was 
further  held  in  that  case  that  the  indictment  need  not  state  from 
whom  the  accused  received  it  or  need  not  state  that  the  name  of 
such  person  is  unknown  to  the  grand  jurors. 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  235 

An  indictment  under  this  section  would  be  entirely  insufficient 
that  did  not  allege  knowledge  on  the  part  of  the  receiver,  and 
the  words  ''unlawfully,  knowingly,  and  wilfully"  should  be  used. 

§  195.  Timber  Depredations  on  Public  lands. — The  Act  of  Au- 
gust 4,  1892,  27  Statute  at  Large,  348,  Second  Supplement,  65, 
extended  the  Act  of  June  3,  1878,  20  Statute  at  Large,  90,  First 
Supplement,  168,  to  include  all  the  public  land  States,  and  these 
Acts  are  substantially  re-enacted  into  new  Section  49,  in  the  fol- 
lowing words : 

"Sec.  49.  Whoever  shall  cut,  or  cause  or  procure  to  be  cut,  or 
shall  wantonly  destroy,  or  cause  to  be  wantonly  destroyed,  any 
timber  growing  on  the  public  lands  of  the  LTnited  States ;  or  who- 
ever shall  remove,  or  cause  to  be  removed,  any  timber  from  said 
public  lands,  with  intent  to  export  or  to  dispose  of  the  same ;  or 
whoever,  being  the  owner,  master,  or  consignee  of  any  vessel,  or 
the  owner,  director,  or  agent  of  any  railroad,  shall  Imowingly 
transport  any  timber  so  cut  or  removed  from  said  lands,  or  lum- 
ber manufactured  therefrom,  shall  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  one  year,  or  both. 
Nothing  in  this  section  shall  prevent  any  miner  or  agriculturalist 
from  clearing  his  land  in  the  ordinary  working  of  his  mining 
claim,  or  in  the  preparation  of  his  farm  for  tillage,  or  from  taking 
the  timber  necessary  to  support  his  improvements,  or  the  taking 
of  timber  for  the  use  of  the  United  States.  And  nothing  in  this 
section  shall  interfere  with  or  take  away  any  right  or  privilege 
under  any  existing  law  of  the  United  States  to  cut  or  remove 
timber  from  any  public  lands." 

Some  of  the  cases  decided  by  the  courts  under  some  of  the 
timber  statutes  of  the  Old  Code  will  be  of  assistance  in  determine 
ing  some  of  the  elements  of  this  new  section.  For  instance,  in 
United  States  vs.  Stores,  14  Federal,  824,  it  was  determined  that 
the  term  "timber,"  as  used  in  Section  2461  of  the  Revised  Stat- 
utes, applies  not  alone  to  large  trees  fit  for  house  or  ship-building, 
but  includes  trees  of  any  size,  of  a  character  or  sort  that  may  be 
used  in  any  kind  of  manufacture,  or  the  construction  of  any 
article ;  and  it  was  also  there  determined  that  the  using  of  trees 
for  fire-wood  or  burning  into  charcoal  was  no  justification  for  the 
cutting. 

In  United  States  vs.  Garretson,  42  Federal,  22,  the  District 
Judge  held,   on  demurrer,  that  the   general  public  domain   is 


236  OFFENSES  AGAINST  OPFHATIONS  OF  THE  GOVERNMENT 

open  to  private  entry,  and  lands  cannot  be  said  to  be  reserved 
for  such  entry.  The  lands  reserved  are  thus  severed  from  the 
mass  of  public  lands,  and  appropriated  for  Government  purposes. 

In  a  prosecution  under  Old  Section  5388,  as  amended  by  the 
Act  of  June  4,  1888,  which  forbade  the  cutting  or  wanton  de- 
struction of  timber  upon  military  or  Indian  Reservation,  the 
Court,  in  the  case  of  the  United  States  vs.  Konkapot,  48  Federal, 
64,  held  that  that  statute  did  not  apply  to  one  who  removed  and 
used  for  building  purposes  timber  which  had  been  cut  on  an  In- 
dian Reservation  by  another  person  without  his  aid  or  encour- 
agement. Of  course,  the  present  section  not  only  covers  the 
cutting  and  causing  or  procuring  to  be  cut.  or  wanton  destruc- 
tion, but  also  removal  of  any  timber  from  such  public  lands. 

Intent. — Prosecutions  under  this  section  should  include  the 
allegation  of  knowledge  and  wilfulness,  and  a  depredation  by 
mistake,  it  is  thought,  would  not  l)e  an  offense ;  that  is,  for  one 
who  got  upon  the  pul)lic  domain  thinking  that  he  was  upon  his 
own  pro])erty.  When,  however,  he  has  knowledge  that  it  is  Gov- 
ernment lands,  on  the  authority  of  Taylor  vs.  United  States,  113 
Federal,  which  was  an  oi)ini()n  by  the  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit,  he  would  not  be  protected  by  a  general 
custom  in  that  particular  locality,  which  was  known  to  the  Gen- 
eral Land  Office,  of  entering  on  land  and  cutting  the  timber  there- 
from before  the  patent  was  obtained ;  nor  would  the  defendant 
be  protected  for  unlawfully  cutting  timber  on  public  land  by 
the  fact  that  he  acted  in  accordance  with  a  general  custom,  nor 
by  the  fact  that  prior  to  the  time  he  unlawfully  cut  timber  he 
endeavored  to  ascertain  whether  the  land  was  surveyed,  and  had 
also  notified  a  Special  Agent  of  the  Government  that  he  was  cut- 
ting the  timber,  and  was  not  warned  off  for  three  weeks.  None 
of  these  facts,  says  the  Court,  in  that  case,  are  evidence  of  an 
honest  intent.  It  was  also  determined  in  that  case  that  an  occu- 
pant of  a  mineral  claim,  who  has  applied  for  a  patent  before  the 
purchase  price  is  paid,  and  before  he  receives  a  certificate,  has 
no  right  to  cut  the  timber  on  such  claim  with  the  intent  to  export 
or  remove  the  same,  and  a  license  from  him  to  so  cut  the  timber 
gives  no  protection  to  the  licensee  as  against  the  Government. 

Indictment. — In  Morgan  vs.  United  States,  148  Federal,  189, 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  237 

the  Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  held  that  in 
a  prosecution  for  cutting  timber  from  the  public  domain,  the 
defendant  Avas  not  prejudiced  by  the  fact  that  the  indictment 
charged  that  he  cut  the  timber  with  intent  unlawfully  to  export 
and  with  intent  to  dispose  of  the  same,  and  that  a  conviction 
could  not  be  set  aside  because  of  such  duplicity,  since  Section 
1025  provided  that  no  indictment  shall  be  deemed  insufficient,  or 
the  proceedings  under  it  affected,  by  any  defect  in  matter  of 
form,  which  does  not  tend  to  prejudice  the  defendant. 

§  196.  Timber,  Etc.,  Depredations  on  Indian  and  Other  Reserva- 
tions.— Section  5388  of  the  old  statutes,  and  the  Acts  of  ]\Iarch 
3.  1875.  First  Supplement.  91,  and  the  Fourth  of  June,  1888,  4 
Supplement,  588.  are  included  in  substance  in  new  Section  50, 
which  reads  as  follows: 

"Sec.  50.  Whoever  shall  unlawfully  cut.  or  aid  in  unlawfully 
cutting,  or  shall  wantonly  injure  or  destroy,  or  procure  to  be 
wantonly  injured  or  destroyed,  any  tree,  growing,  standing,  or 
being  upon  any  land  of  the  United  States  which,  in  pursuance 
of  law.  has  been  reserved  or  purchased  by  the  United  States  for 
any  public  use,  or  upon  any  Indian  Reservation,  or  lands  belong- 
ing to  or  occupied  by  any  tribe  of  Indians  under  the  authority  of 
the  United  States,  shall  be  fined  not  more  than  five  hundred  dol- 
lars, or  imprisoned  not  more  than  one  year,  or  both. ' ' 

In  the  case  of  United  States  vs.  Pine  River  Logging  and  Im- 
provement Company,  89  Federal,  907,  the  Circuit  Court  of  Ap- 
peals for  the  Eighth  Circuit  announced  the  doctrine  that  the 
title  to  the  timber  growing  or  standing  on  Indian  Reservations 
is  in  the  United  States,  and  in  the  absence  of  legislative  author- 
ity, Indians  have  no  right  to  cut  or  dispose  of  it ;  and  where  an 
Indian  made  a  contract  with  a  purchaser  to  cut  and  deliver  to 
such  purchaser  a  certain  quantity  of  timber,  "more  or  less,  or 
about."  to  be  taken  from  the  dead  timber  on  a  reservation,  which 
contract  to  sell  was  permitted  by  an  Act  of  Congress  empowering 
the  President,  in  his  discretion,  to  authorize  certain  sales,  such 
contract  would  be  limited  to  the  amount  stated,  and  the  fact  that 
the  purchaser  had  paid  for  a  large  quantity,  delivered  and  re- 
ceived, in  excess  of  that  stated  in  the  contract,  did  not  give  him 
title  thereto,  and  it  was  no  defense  to  a  suit  for  its  recovery  by 
the  Government, 


238     OFFENSES  AGAINST   OPEKATlUNS   OF   THE   GOVERNMENT 

In  that  suit  it  was  also  determined  that  a  Government  agent 
could  not  legalize  a  trespass  committed  by  the  cutting  of  living 
trees  in  violation  of  the  statute,  by  agreeing,  after  they  were  cut 
and  had  thus  become  dead  timber,  that  they  might  pass  under  a 
contract,  and  such  an  agreement  would  not  estop  the  Government 
from  recovering  the  value  of  such  trees. 

§  197.  Boxing,  Etc.,  Timber  on  Public  Lands  for  Turpentine,  Etc. 
—The  Act  of  June  4,  1906,  34  Statute  at  Large,  208,  is  prac- 
tically re-enacted  into  new  Section  51 : 

''Sec.  51.  Whoever  shall  cut,  chip,  chop,  or  box  any  tree  upon 
any  lands  belonging  to  the  United  States,  or  upon  any  lands  cov- 
ered by  or  embraced  in  any  unperfected  settlement,  application, 
filing,  entry,  selection,  or  location,  made  under  any  law  of  the 
United  States,  for  the  purpose  of  obtaining  from  such  tree  any 
pitch,  turpentine,  or  other  substance,  or  shall  knowingly  encour- 
age, cause,  procure,  or  aid  in  the  cutting,  chipping,  chopping,  or 
boxing  of  any  such  tree,  or  shall  buy,  trade  for,  or  in  any  manner 
acquire  any  pitch,  turpentine,  or  other  substance,  or  any  article 
or  commodity  made  from  any  such  pitch,  turpentine,  or  other 
substance,  when  he  has  knowledge  that  the  same  has  been  so  un- 
lawfully obtained  from  such  trees,  shall  be  fined  not  more  than 
five  hundred  dollars,  or  imprisoned  not  more  than  one  year,  or 
both." 

This  statute  became  necessary  by  reason  of  the  depredations 
which  the  Courts  held  were  not  violations  of  any  existing  statutes. 
In  United  States  vs.  Garretson,  42  Federal,  22,  the  Court  held 
that  Section  5388  of  the  old  Statutes,  making  the  wanton  de- 
struction of  timber  on  lands  reserved  for  public  uses  a  crime,  did 
not  cover  turpentine  boxing  or  wanton  destruction  of  timber  on 
lands  open  for  pre-emption,  homestead,  and  cash  entries.  So 
also,  to  the  same  effect  was  the  case  of  Bryant  vs.  United  States, 
105  U.  S.,  941,  where  the  Circuit  Court  of  Appeals  for  the  Fifth 
Circuit  held  that  old  Section  2461,  which  prohibited  the  cutting 
or  removing  of  oak  trees  or  other  timber  from  the  public  lands  of 
the  United  States,  with  intent  to  export,  dispose  of,  use,  or  em- 
ploy, the  trees  or  timber  for  any  purpose  except  for  the  use  of 
the  navy,  was  not  violated  by  boxing  pine  trees  on  public  lands 
for  the  purpose  of  the  manufacture  of  turpentine,  since  the  same 
was  not  a  cutting  of  trees  within  the  meaning  of  the  statute.  The 
present  statute,  however,  inhibits  the  cutting,  chipping,  chopping, 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  239 

or  boxing  for  the  purposes  therein  denounced.  An  indictment, 
of  course,  should  contain  the  words  "unlawful,  wilful,  and 
knowing. ' ' 

§  198.  Setting  Fire  to  Timber  on  Public  Lands. — New  Section 
52,  which  incorporates  the  salient  features  of  the  Act  of  the  24th 
of  February,  1897 ;  Second  Supplement,  562,  and  the  Act  of  May 
"  5th,  1900,  Second  Supplement,  1163,  is  in  the  following  words : 

"Sec.  52.  Whoever  shall  wilfully  set  on  fire,  or  cause  to  be 
set  on  fire,  any  timber,  underbrush,  or  grass  upon  the  public  do- 
main, or  shall  leave  or  suffer  fire  to  burn  imattended  near  any 
timber  or  other  inflammable  material,  shall  be  fined  not  more 
than  five  thousand  dollars,  or  imprisoned  not  more  than  two 
years,  or  both. ' ' 

§  199.  Failing  to  Extinguish  Fires. — Section  53  of  the  New 
Code  is  made  from  a  part  of  the  Acts  of  which  52  was  construct- 
ed, and  reads  as  follows : 

"Sec.  53.  Whoever  shall  wilfully  set  on  fire,  or  cause  to  be  set- 
on  fire,  any  timber,  underbrush,  or  grass  upon  the  public  domain, 
or  shall  leave  or  suffer  fire  to  bum  unattended  near  any  timber, 
or  other  inflammable  material,  shall  be  fined  not  more  than  five 
thousand  dollars,  or  imprisoned  not  more  than  two  years,  or 
both." 

The  fines  arising  from  Sections  52  and  53  are  to  be  paid  into 
the  Public  School  Fund  of  the  county  in  which  the  lands  where 
the  offense  was  committed  are  situated,  and  this  is  provided  by 
Section  54  of  the  New  Code. 

§  200.  Breaking  Fence  or  Gate  Enclosing  Reserve  Lands,  or 
Driving  or  Permitting  Live  Stock  to  Enter  Upon. — Section  56  of 
the  New  Code  reads  as  follows : 

"Sec.  56.  Whoever  shall  knowingly  and  unlawfully  break, 
open,  or  destroy  any  gate,  fence,  hedge,  or  wall  inclosing  any 
lands  of  the  United  States  which,  in  pursuance  of  any  law,  have 
been  reserved  or  purchased  by  the  United  States  for  any  public 
use ;  or  whoever  shall  drive  any  cattle,  horses,  hogs,  or  other  five 
stock  upon  any  such  lands,  for  the  purpose  of  destroying  the 
grass  or  trees  on  said  lands,  or  where  they  may  destroy  the  said 
grass  or  trees;  or  whoever  shall  knowingly  permit  his  cattle, 
horses,  hogs,  or  other  live  stock,  to  enter  through  any  such  in- 
closure  upon  any  such  lands  of  the  United  States,  where  such  cat- 
tle, horses,  hogs,  or  other  live  stock  may  or  can  destroy  the  grass 
or  trees  or  other  property  of  the  United  States  on  the  said  lands, 


240     OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT 

shall  be  fined  not  more  than  five  hundred  dollars,  or  im- 
prisoned not  more  than  one  year,  or  both;  Provided,  That 
nothing  in  this  section  shall  be  construed  to  apply  to  unreserved 
public  lands." 

§  201.  Injuring  or  Removing  Posts  or  Monuments. — Section  57 
the  New  Code  is  as  follows : 

"Sec.  57.  "Whoever  shall  wilfully  destroy,  deface,  change,  or 
remove  to  another  place  any  section  corner,  quarter-section  cor- 
ner, or  meander  post,  on  any  Government  line  of  survey,  or  shall 
wilfully  cut  down  any  witness  trees  or  any  tree  blazed  to  mark 
the  line  of  a  Government  survey,  or  shall  wilfully  deface,  change, 
or  remove  any  monument  or  bench  mark  of  any  Government  sur- 
vey, shall  be  fined  not  more  than  two  hundred  and  fifty  dollars, 
or  imprisoned  not  more  than  six  months,  or  both." 

§  202.  Interrupting-  Service. — Section  58  of  the  New  Code  reads 
in  the  following  words,  and  takes  the  place  of  old  Section  2412: 
"Sec.  58.  Whoever  in  any  manner,  by  threats  or  force,  shall 
interrupt,  hinder,  or  prevent  the  surveying  of  the  public  lands, 
or  of  any  private  land  claim  which  has  been  or  may  be  confirmed 
by  the  United  States,  by  the  persons  authorized  to  survey  the 
same,  in  conformity  with  the  instructions  of  the  Commissioner  of 
the  General  Land  Office,  shall  be  fined  not  more  than  three  thou- 
sand dollars  and  imprisoned  not  more  than  three  years." 

§  203.  Agreement  to  Prevent  Bids  at  Sale  of  Lands. — Old  Sec- 
tion 2373  becomes  New  Section  59,  which  is  in  the  following 
words : 

"Sec.  59.  Whoever,  before  or  at  the  time  of  the  public  sale 
of  any  of  the  lands  of  the  United  States,  shall  bargain,  contract, 
or  agree,  or  attempt  to  bargain,  contract,  or  agree  with  any  other 
person,  that  the  last-named  person  shall  not  bid  upon  or  pur- 
chase the  land  so  offered  for  sale,  or  any  parcel  thereof;  or  who- 
ever by  intimidation,  combination,  or  imfair  management  shall 
hinder  or  prevent,  or  attempt  to  hinder  or  prevent,  any  person 
from  bidding  upon  or  purchasing  any  tract  of  land  so  offered  for 
sale,  shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  two  years,  or  both." 

§  204.  Injuries  to  United  States  Telegraph,  Etc.,  Lines. — The 
Act  of  the  twenty-third  of  June,  1874,  18  Statute  at  Large,  250, 
First  Supplement,  46,  did  not  include  telephone  and  cable  lines 
and  systems,  but  Section  60  of  the  New  Code,  in  the  following 
words,  does : 

"Sec,   60.     Whoever  shall  wilfully  or  maliciously  injure  or 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  241 

destroy  any  of  the  works,  property,  or  material  of  any  telegraph, 
telephone,  or  cable  line,  or  system,  operated  or  controlled  by  the 
United  States,  whether  constructed,  or  in  process  of  construction, 
or  shall  wilfully  or  maliciously  interfere  in  any  way  with  the 
working  or  use  of  any  such  line,  or  system,  or  shall  wilfully  or 
maliciously  obstruct,  hinder,  or  delay  the  transmission  of  any 
communication  over  any  such  line,  or  system,  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more  than 
three  years,  or  both." 

§  205.  Counterfeiting  Weather  Forecasts. — All  of  the  salient 
features  of  the  Act  of  August  eighth,  1894,  28  Statute  at  Large, 
274;  Second  Supplement,  233;  the  Act  of  March  2,  1895,  28 
Statute  at  Large,  737 ;  Second  Supplement,  406 ;  and  the  Act  of 
April  twenty-fifth,  1896,  29  Statute  at  Large,  108,  Second  Supple- 
ment, 459,  are  re-enacted  in  the  new  Section  61,  which  reads  as 
follows : 

"Sec.  61.  Whoever  shall  knowingly  issue  or  publish  any  coun- 
terfeit weather  forecaste  or  warning  of  weather  conditions  falsely 
representing  such  forecaste 'or  warning  to  have  been  issued  or 
published  by  the  Weather  Bureau,  United  States  Signal  Service, 
or  other  branch  of  the  Government  service,  shall  be  fined  not 
more  than  five  hundred  dollars,  or  imprisoned  not  more  than 
ninety  days,  or  both." 

§  206.  Interfering  with  Employees  of  Bureau  of  Animal  Indus- 
try.—The  Act  of  March  third,  1905,  33  Statute  at  Large,  1265,  is 
re-enacted,  with  few  unimportant  changes,  in  Section  62  in  the 
following  words: 

"Sec.  62.  Whoever  shall  forcibly  assault,  resist,  oppose,  pre- 
vent, impede,  or  interfere  with  any  officer  or  employee  of  the 
Bureau  of  Animal  Industry  of  the  Department  of  Agriculture  in 
the  execution  of  his  duties,  or  on  account  of  the  execution  of  his 
duties,  shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  one  year,  or  both ;  and  whoever  shall  use 
any  deadly  or  dangerous  weapon  in  resisting  any  officer  or  em- 
ployee of  the  Bureau  of  Animal  Industry  of  the  Department  of 
Agriculture  in  the  execution  of  his  duties,  with  intent  to  commit 
a  bodily  injury  upon  him  or  to  deter  or  prevent  him  from  dis- 
charging his  duties  or  on  accoimt  of  the  performance  of  his  du- 
ties, shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both." 

§  207.  Forgery  of  Certificate  of  Entry.— Section  63  of  the  New 


242  OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT 

Code  re-enacts  the  substantial  provisions  of  old  Section  5417,  in 
the  following  words: 

*'Sec.  63.  Whoever  shall  forge,  counterfeit,  or  falsely  alter 
any  certificate  of  entry  made  or  required  to  be  made  in  pursu- 
ance of  law  by  any  officer  of  the  customs,  or  shall  use  any  such 
forged,  counterfeited,  or  falsely  altered  certificate,  knowing  the 
same  to  be  forged,  counterfeited,  or  falsely  altered,  shall  be  fined 
not  more  than  ten  thousand  dollars  and  imprisoned  not  more  than 
three  years." 

§  208.  Concealment  or  Destruction  of  Invoices,  Etc. — Old  Section 
5443  is  re-enacted  into  Section  64  in  the  following  words : 

' '  Sec.  64.  "Whoever  shall  wilfully  conceal  or  destroy  any  in- 
voice, book,  or  paper,  relating  to  any  merchandise  liable  to  duty, 
which  has  been  or  may  be  imported  into  the  United  States  from 
any  foreign  port  or  coimtry,  after  an  inspection  thereof  has  been 
demanded  by  the  collector  of  any  collection  district,  or  shall  at 
any  time  conceal  or  destroy  any  such  invoice,  book,  or  paper  for 
the  purpose  of  suppressing  any  evidence  of  fraud  therein  con- 
tained, shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  two  years,  or  both." 

§  209.  Resisting  Revenue  Officers ;  Rescuing  or  Destroying  Seized 
Property,  Etc. — The  provisions  of  old  Section  5447  become  in  sub- 
stance Section  65  of  the  New  Code,  in  the  following  words: 

"Sec.  65.  Whoever  shall  forcibly  assault,  resist,  oppose,  pre- 
vent, impede,  or  interfere  with  any  officer  of  the  customs  or  of  the 
internal  revenue,  or  his  deputy,  or  any  person  assisting  him  in 
the  execution  of  his  duties,  or  any  person  authorized  to  make 
searches  and  seizures,  in  the  execution  of  his  duty,  or  shall  rescue, 
attempt  to  rescue,  or  cause  to  be  rescued,  any  property  which  has 
been  seized  by  any  person  so  authorized ;  or  whoever  before,  at,  or 
after  such  seizure,  in  order  to  prevent  the  seizure  or  securing  of 
any  goods,  wares,  or  merchandise  by  any  person  so  authorized, 
shall  stave,  break,  throw  overboard,  destroy,  or  remove  the  same, 
shall  be  fined  not  more  than  two  thousand  dollars,  or  imprisoned 
not  more  than  one  year,  or  both;  and  whoever  shall  use  any 
deadly  or  dangerous  weapon  in  resisting  any  person  authorized 
to  make  searches  or  seizures,  in  the  execution  of  his  duty,  with 
intent  to  commit  a  bodily  injury  upon  him,  or  to  deter  or  prevent 
him  from  discharging  his  duty,  shall  be  imprisoned  not  more  than 
ten  years." 

§  210.  Falsely  Assuming  to  be  Revenue  Officer. — There  is  little 
difference  between  Section  5448  of  the  old  Statutes  and  new  Sec- 
tion 66,  which  is  as  follows : 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  243 

"Sec.  66.  "Whoever  shall  falsely  represent  himself  to  be  a  rev- 
enue officer,  and,  in  such  assumed  character,  demand  or  receive 
any  money  or  other  article  of  value  from  any  person  for  any 
duty  or  tax  due  to  the  United  States,  or  for  any  violation  or  pre- 
tended violation  of  any  revenue  law  of  the  United  States,  shall  be 
fined  not  more  than  five  hundred  dollars  and  imprisoned  not 
more  than  two  years." 

This  statute  is  in  addition  to  Section  32  of  the  New  Code,  which 
has  been  heretofore  noticed,  and  which  was  old  Section  5448. 
Section  32  makes  it  an  offense  for  any  person  to  pretend  to  be  any 
United  States  officer,  while  Section  66  makes  it  an  offense  to  as- 
sume to  be  a  revenue  officer,  when  in  such  assumed  character  a 
demand  is  made  for,  or  any  money  or  other  article  of  value  is 
received  from  any  person  for  any  duty  or  tax  due  the  United 
States,  or  for  any  violation  or  pretended  violation  of  any  of  the 
revenue  laws  of  the  United  States.  In  other  words,  a  bare  as- 
sumption or  pretention  that  one  is  a  United  States  revenue  officer, 
without  demanding  or  receiving  any  money  or  article  of  value, 
as  set  out  in  the  statute,  would  not  be  an  offense  under  this  sec- 
tion, nor  would  it  be  an  offense  under  Section  32. 

Indictment. — An  indictment  should  charge  the  unlawful,  felon- 
ious, and  false  representation  of  the  defendant  to  be  a  revenue 
officer  of  the  United  States,  and  that  in  such  assumed  character 
he  did  demand  and  receive  certain  money  or  valuable  thing,  as 
the  case  may  be,  as  a  duty  or  tax,  or  in  settlement  of  some  vio- 
lation or  pretended  violation  of  the  Government  revenue  laws. 

In  United  States  vs.  Browne,  119  Federal,  482,  District  Judge 
Thomas  held  good,  on  demurrer,  an  indictment  which  jointly  in- 
dicted two  defendants  under  old  Section  5448,  the  first  count  of 
which  charged  that  the  defendants  unlawfully  and  feloniously 
falsely  represented  themselves  to  be  revenue  officers  of  the  United 
States,  and  in  such  assumed  character  did  demand  and  receive 
certain  money,  to  wit,  two  hundred  dollars,  of  and  from  one  A. 
Isaacs,  for  a  pretended  violation  by  the  said  Isaacs  of  a  revenue 
law  of  the  United  States ;  that  is  to  say,  of  Section  8  of  an  Act 
of  Congress  concerning  internal  revenue  taxation,  approved  June 
13,  1898,  as  amended  in  the  respect  of  Imowingly  and  wilfully 
buying  washed  revenue  stamps,  etc.  The  second  count  was  like 
the  first,  except  that  it  charged  that  the  defendants  had  in  pos- 


244     OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT 

session  washed  and  restored  revenue  stamps,  knowingly,  and  with- 
out lawful  excuse.  The  third  count  charged  that  the  defendants, 
with  intent  to  defraud  one  Isaacs,  unlawfully  and  feloniously, 
did  falsely  assume  and  pretend  to  be  officers  and  employees  acting 
under  the  authority  of  the  United  States,  to  wit,  revenue  officers 
and  employees,  and  in  such  pretended  character  did  fraudulently 
demand  and  obtain  from  him,  the  said  Isaacs,  a  sum  of  money,  to 
wit,  two  hundred  dollars.  This  third  count,  it  will  be  noticed,  is 
laid  under  what  is  now  new  Section  32.  The  defendants'  counsel 
contended  that  the  averments  of  the  indictment  were  not  suffi- 
ciently defined,  particularly  as  to  the  designation  of  the  sort  of 
revenue  officer  meant.  The  Court  held  that  the  words  of  the  in- 
dictment were  technically  sufficient  to  charge  an  offense  under  the 
statute. 

The  case  of  the  United  States  vs.  Farnham,  127  Federal,  478, 
was  discussed  in  considering  Section  32  supra,  but  it  is  not  out  of 
place  to  cite  it  here  again  to  support  the  theory  that  there  must 
not  be  a  remoteness  between  the  pretended  character,  and  the 
demand  or  receipt  of  the  money  or  thing  of  value.  In  the  Farn- 
ham case,  the  defendant  pretended  to  ])e  a  secret-service  opera- 
tive, wearing  a  badge,  etc.  Ten  months  afterwards  ho  returned 
to  the  same  hotel,  representing  hiinself  to  be  a  traveling  salesman, 
and  secured  the  cashing  of  a  worthless  check.  At  the  time  of  the 
cashing  of  the  worthless  check,  he  did  not  make  any  further  rep- 
resentation of  his  Government  employment,  and  the  Court  held 
that  the  facts  were  insufficient  to  sustain  a  conviction  for  pre- 
tending to  be  an  employee  of  the  United  States,  and  as  such 
knowingly  and  feloniously  obtaining  from  another  a  sum  of 
money,  etc. 

§  211.  Offering  Presents  to  Revenue  Officers. — Section  67  of  the 
New  Code,  which  re-enacts  the  substantial  provisions  of  old  Stat- 
ute 5452,  is  as  follows : 

"Sec.  67.  Whoever,  being  engaged  in  the  importation  into  tha 
United  States  of  any  goods,  wares,  or  merchandise,  or  being  in- 
terested as  principal,  clerk,  or  agent  in  the  entry  of  any  goods, 
wares,  or  merchandise,  shall  at  any  time  make,  or  offer  to  make, 
to  any  officer  of  the  revenue,  any  gratuity  or  present  of  money  or 
other  thing  of  value,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  two  years,  or  both." 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  245 

The  offense  herein  denounced  is  a  species  of  bribery,  and  with- 
out using  the  ugly  word  "bribery,"  is  for  the  purpose  of  covering 
such  gratuities  and  gifts  as  might  otherwise  be  received  by  the 
public  official,  even  though  such  official  would  not  think  of  ac- 
cepting a  bribe.  The  statute  is  limited  in  that  it  only  applies  to 
such  gratuities  or  presents  as  are  made  by  importers  to  any  offi- 
cer in  the  Federal  revenue  service.  Smuggling  of  merchandise 
from  foreign  countries  into  the  United  States  would  doubtless  be 
facilitated  to  a  more  or  less  extent  by  gifts  or  gratuities  from  such 
smugglers  to  revenue  inspectors  and  officers.  The  purpose,  there- 
fore, of  the  statute,  seems  to  be  to  prevent  such  friendships  be- 
tween importers  and  revenue  officials  as  would  facilitate  impor- 
tations of  goods  into  this  country  without  the  payment  of  legal 
duties. 

§  212.  Admitting  Merchandise  to  Entry  for  Less  than  Legal 
Duty. — Old  Section  5444  becomes  New  Section  68,  which  reads  as 
follows : 

"Sec.  68.  Whoever,  being  an  officer  of  the  revenue,  shall,  by 
any  means  whatever,  knowingly  admit  or  aid  in  admitting  to  en- 
try, any  goods,  wares,  or  merchandise,  upon  payment  of  less  than 
the  amount  of  duty  legally  due  thereon,  shall  be  removed  from 
office  and  fined  not  more  than  five  thousand  dollars,  or  impris- 
oned not  more  than  two  years,  or  both. ' ' 

District  Judge  Chatfield,  in  the  case  of  United  States  vs.  Mes- 
call,  164  Federal,  584,  which  was  an  indictment  under  old  Section 
5444,  held  that  that  section  did  not  refer  merely  to  the  act  of 
filing  at  the  customs-house  the  document  known  as  an  entry,  but 
comprises  the  transaction  of  entering  the  goods  into  the  body  of 
the  commerce  of  the  country ;  that  is,  the  whole  process  of  passing 
the  goods  from  the  customs-house,  which  cannot  be  deemed  com- 
pleted until  liquidation  has  been  had.  He  further  held  that  the 
words  in  the  statute,  "aid  in  the  illegal  admission  of  imports," 
includes  aid  given  both  before  and  after  the  fact,  and  where  a 
custom  officer  aids  one  who  has  made  wrongful  entry,  by  con- 
cealing the  falsity  of  the  entry,  or  by  supporting  it  by  false  official 
returns,  he  is  within  the  prohibition  or  the  section. 

Indictment. — In  the  above  case,  the  Court  held  that  an  indict- 
ment which  charged  that  certain  goods  had  been  imported  into 


246  OFFENSES  AGAINST  OPEKATIONS  OF  THE  GOVERNMENT 

the  United  States,  and  entered  by  the  importer  with  the  collector 
of  the  port  under  an  entry  number,  that  such  goods  were  subject 
to  a  specific  duty,  and  that  the  defendant,  who  was  an  officer  of 
the  customs  service,  as  a  part  of  his  official  duties,  was  to  weigh 
the  goods  included  in  this  particular  importation,  and  to  return 
to  the  collector  a  true  statement  of  the  result  of  that  weighing 
from  which  statement  the  amount  of  duty  to  be  collected  was  to 
be  liquidated  and  paid,  and  that  in  fact  the  defendant  returned 
a  false  statement  of  weight,  upon  which  false  weight  duty  was 
paid,  (the  amount  of  this  payment  being  too  little,  in  proportion 
to  the  amount  by  which  the  false  weight  was  less  than  the  actual 
weight),  and  that  the  defendant,  by  so  doing,  unlawfully  admit- 
ted, or  aided  in  admitting,  to  entry,  goods  specified  upon  pay- 
ment of  less  than  the  amount  of  duty  legally  due  thereon,  was 
not  subject  to  demurrer  for  failing  to  describe  an  offense  under 
this  statute.  See  also  United  States  vs.  Browne,  126  Federal,  766, 
and  United  States  vs.  Legg,  105  Federal,  933.  See  United  States 
vs.  Mescall,  by  the  same  judge,  for  other  points,  164  Federal,  587, 
§  213.  Securing  Entry  of  Merchandise  by  False  Samples,  Etc. — 
Section  69  in  the  New  Code  is  the  same  as  Section  5445  of  the  old 
Statutes,  and  is  as  follows : 

"Sec.  69.  Whoever,  by  any  means  whatever,  shall  knowingly 
effect,  or  aid  in  effecting,  any  entry  of  goods,  wares,  or  merchan- 
dise, at  less  than  the  true  weight  or  measure  thereof,  or  upon  a 
false  classification  thereof  as  to  quality  or  value,  or  by  the  pay- 
ment of  less  than  the  amoimt  of  duty  legally  due  thereon,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  imprisoned  not 
more  than  two  years,  or  both. ' ' 

The  allegations  and  proof  imder  this  section  should  show 
knowledge  on  the  part  of  the  defendant  of  the  improper  weight 
or  measure  or  classification  of  the  goods  or  articles  imported ;  and 
while  in  United  States  vs.  Rosenthal,  126  Federal,  766,  District 
Judge  Thomas  held  that  an  indictment  under  5445  which  charged 

that  the  defendant,  on  a  day  named,  "with  intent that  the 

United  States  should  be  wrongfully  deprived  of  a  portion  of  the 
lawful  duties  due"  on  certain  imported  goods  which  were  specific- 
ally dutiable  according  to  weight,  effected  an  entry  thereof  at 
less  than  their  true  weight,  and  by  payment  of  less  than  their 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  247 

legal  duty,  sufficiently  charged  that  the  entrj^  was  knowingly  ef- 
fected; yet,  it  is  believed  that  the  correct  practice  is  to  use  the 
word  knowingly  in  the  indictment  when  the  statute  makes  knowl- 
edge a  constituent  of  the  offense. 

With  the  above  qualification,  the  indictment  as  epitomized  by 
Judge  Thomas  in  that  case,  may  be  relied  upon  as  good  under  this 
statute,  such  epitome  comprehending  that  the  defendants,  on  the 
day  named,  and  with  intent  to  defraud  the  United  States  of  duty 
on  goods  specifically  dutiable  according  to  weight,  effected  an 
entry  thereof,  which  was  an  entry  for  ware-houseing  the  goods, 
and  by  payment  of  less  than  the  legal  duty.  They  effected  said 
entry,  (1)  by  making  it  in  accordance  with  false  statements  as 
to  weight  in  the  invoice,  which  invoice  had  by  their  direction  been 
made,  consulated,  and  forwarded  by  their  agent  in  Japan;  (2) 
by  corruptly  procuring  said  invoice  to  be  wrongfully  approved, 
passed,  and  reported,  by  Browne,  the  examiner,  to  the  collector. 
In  other  words,  the  offense  described  in  the  statute  is  knowingly 
effecting  an  entry  of  goods,  (a)  at  less  than  their  true  weight  or 
measure;  (b)  upon  a  false  classification;  or  (c)  by  payment  of 
less  than  legal  duty. 

§  214.  False  Certification  bj  Consular  Officers. — Old  Statute 
5442  has  been  changed  by  the  omission  of  the  words  ' '  commercial 
agent  or  vice-commercial  agent,"  substituting  therefor,  "or  other 
person  employed  in  the  Consular  Service  of  the  United  States," 
in  new  Section  70,  which  is  in  the  following  words: 

"Sec.  70.  "Whoever,  being  a  consul,  or  vice-consul,  or  other 
person  employed  in  the  consular  service  of  the  United  States,  shall 
knowingly  certify  falsely  to  any  invoice,  or  other  paper,  to  which 
his  certificate  is  by  law  authorized  or  required,  shall  be  fined  not 
more  than  ten  thousand  dollars  and  imprisoned  not  more  than 
three  years." 

This  is  the  only  difference  between  the  new  and  the  old  law. 

Query. — An  United  States  Consul  or  other  person  in  the  Con- 
sular Service  who  committed  the  offense  denounced  by  the  statute 
while  he  was  in  some  foreign  country  would  be  bej^ond  the  juris- 
diction of  the  Federal  Government,  because  of  venue.  The  incor- 
poration of  the  word  "knowingly"  in  the  section  also  requires  it 
in  the  proof  and  indictment. 


248     OFFENSES  AGAINST   OPERATIONS  OF  THE   GOVERNMENT 

§  215.  Taking  Seized  Property  from  Custody  of  Revenue  Officer. 
— There  is  practically  no  difference  between  the  wording  of  old 
Section  5446  and  new  Section  71,  which  reads  as  follows : 

"Sec.  71.  Whoever  shall  dispossess  or  rescue,  or  attempt  to 
dispossess  or  rescue,  any  property  taken  or  detained  by  any  offi- 
cer or  other  person  under  the  authority  of  any  revenue  law  of  the 
United  States,  or  shall  aid  or  assist  therein,  shall  be  fined  not 
more  than  three  hundred  dollars  and  imprisoned  not  more  than 
one  year." 

While  this  statute  does  not  contain  the  word  "knowingly," 
there  is  no  doubt  but  that  an  indictment  should  allege  that  the 
person  charged  knew  that  the  property  rescued  or  taken  from  the 
revenue  officer  was  in  fact  in  possession  of  such  officer  as  a  rev- 
enue officer  of  the  United  States. 

§  216.  Forging,  Etc.,  Certificate  of  Citizenship. — The  Act  of 
June  29,  1906,  34  Statute  at  Large,  602,  known  as  the  Naturaliza- 
tion Law,  contained  at  Section  16  a  provision  for  the  prosecution 
of  falsely  making,  forging,  etc.,  certificates,  when  such  certificate 
was  for  the  use  of  the  person  so  falsely  making  or  for  the  use  of 
someone  else.  In  other  words,  to  constitute  an  offense  under  the 
statute,  the  certificate  must  have  been  so  falsely  made,  etc.,  to  be 
used,  and  such  allegation  is  necessary  in  the  bill,  and  must  be 
made  in  the  proof.  The  section,  as  it  passes  into  the  New  Code, 
becomes  Section  74,  which  reads  as  follows : 

"Sec.  74.  Whoever  shall  falsely  make,  forge,  or  counterfeit, 
or  cause  or  procure  to  be  falsely  made,  forged,  or  coimterfeited, 
or  shall  knowingly  aid  or  assist  in  falsely  making,  forging,  or 
counterfeiting  any  certificate  of  citizenship,  with  intent  to  use 
the  same,  or  with  the  intent  that  the  same  may  be  used  by  some 
other  person,  shall  be  fined  not  more  than  ten  thousand  dollars, 
or  imprisoned  not  more  than  ten  years,  or  both." 

§  217.  Engraving,  Etc.,  Plate  for  Printing  or  Photographing, 
Concealing,  or  Bringing  Into  the  United  States,  Etc.,  Certificate  of 
Citizenship. — From  the  same  law,  and  being  Section  17  thereof, 
comes  Section  75  of  the  New  Code,  which  reads  as  follows: 

"Sec.  75.  Whoever  shall  engrave,  or  cause  or  procure  to  be 
engraved,  or  assist  in  engraving,  any  plate  in  the  likeness  of  any 
plate  designed  for  the  printing  of  a  certificate  of  citizenship ;  or 
whoever  shall  sell  any  such  plate,  or  shall  bring  into  the  United 
States  from  any  foreign  place  any  such  plate,  except  under  the 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  249 

direction  of  the  Secretary  of  Commerce  and  Labor,  or  other 
proper  officer;  or  whoever  shall  have  in  his  control,  custody,  or 
possession  any  metallic  plate  engraved  after  the  similitude  of  any 
plate  from  which  any  such  certificate  has  been  printed,  with  in- 
tent to  use  or  to  suffer  such  plate  to  be  used  in  forging  or  coun- 
terfeiting any  such  certificate  or  any  part  thereof;  or  whoever 
shall  print,  photograph,  or  in  any  manner  cause  to  be  printed, 
photographed,  made,  or  executed,  any  print  or  impression  in  the 
likeness  of  any  such  certificate,  or  any  part  thereof;  or  whoever 
shall  sell  any  such  certificate,  or  shall  bring  the  same  into  the 
United  States  from  any  foreign  place,  except  by  direction  of  some 
proper  officer  of  the  United  States ;  or  whoever  shall  have  in  his 
possession  a  distinctive  paper  which  has  been  adopted  by  the 
proper  officer  of  the  United  States  for  the  printing  of  such  certi- 
ficate, with  intent  unlawfully  to  use  the  same,  shall  be  fined  not 
more  than  ten  thousand  dollars,  or  imprisoned  not  more  than 
ten  years,  or  both. ' ' 

§  218.  False  Personation,  Etc.,  In  Procuring  Naturalization.— 
Section  5424  of  the  old  statutes  was  construed  in  the  cases  of 
United  States  vs.  York,  131  Federal,  323,  and  United  States  vs. 
Raisch,  144  Federal,  486,  by  reason  of  its  peculiar  wording,  as 
follows : 

"It  will  be  observed  that  after  the  word  'or'  and  before  the 
words  'who  tries,'  etc.,  are  omitted  the  words  'every  person,'  with 
which  the  section  opens.  The  same  omission  occurs  in  the  third 
auxiliary  clause  of  the  section;  hence  'who,'  as  so  used,  and 
wherever  used  in  the  section,  refers  to  the  initial  'every  person.' 
But  such  words  '  every  person '  are  modified  by  the  words  '  apply- 
ing to  be  admitted  a  citizen,  or  appearing  as  a  witness  for  an^ 
such  person ' ;  hence,  as  the  section  literally  reads,  a  person  uiter- 
ing  a  certificate  can  only  be  punished  in  case  he  was  a  'person  ap- 
plying to  be  admitted  a  citizen,  or  appearing  as  a  witness  for  any 
such  person'."    United  States  vs.  York,  131  Fed.,  327. 

To  the  same  effect  is  United  States  vs.  Raisch,  by  Judge  De- 
Haven,  who  limits  the  application  of  the  old  section  to  the  person 
applying  to  be  admitted  a  citizen,  or  appearing  as  a  witness  for 
any  such  person.  To  meet  such  construction,  and  to  remedy  what 
was  evidently  a  mistake,  we  have  Section  76  of  the  New  Code,  in 
the  following  words: 

' '  Sec.  76.  Whoever,  when  applying  to  be  admitted  a  citizen, 
or  when  appearing  as  a  witness  for  any  such  person,  shall  know- 
ingly personate  any  person  other  than  himself,  or  shall  falsely 
appear  in  the  name  of  a  deceased  person,  or  in  an  assumed  or  fie- 


250  OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT 

titious  name ;  or  whoever  shall  falsely  make,  forge,  or  counterfeit 
any  oath,  notice,  affidavit,  certificate,  record,  signature,  or  other 
instrument,  paper,  or  proceeding  required  or  authorized  by  any 
law  relating  to  or  providing  for  the  naturalization  of  aliens;  or 
whoever  shall  utter,  sell,  dispose  of,  or  shall  use  as  true  or  genu- 
ine, for  any  unlawful  purpose,  any  false,  forged,  antedated,  or 
counterfeit  oath,  notice,  certificate,  order,  record,  signature,  in- 
strument, paper,  or  proceeding  above  specified ;  or  whoever  shall 
sell  or  dispose  of  to  any  person  other  than  the  person  for  whom 
it  was  originally  issued  any  certificate  of  citizenship  or  certificate 
showing  any  person  to  be  admitted  a  citizen,  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more  than  five 
years,  or  both." 

This  section  clearly  applies  generally  to  every  person,  whether 
he  be  applying  to  be  admitted  a  citizen,  or  whether  he  be  ap- 
pearing as  a  witness  for  any  such  person.  The  use  of  the  word 
"whoever"  before  each  of  the  clauses  in  the  section  which  de- 
nounce various  phases  of  the  offense,  meet  clearly  the  limitations 
found  in  the  old  statute,  and  render  the  new  section  general  in 
its  application. 

§  219.  Using  False  Certificate  of  Citizenship,  or  Denying  Citizen- 
ship, Etc. — Section  5425  of  the  old  statute  was  enlarged  by  the 
Act  of  June  twenty -ninth,  1906,  34  Statute  at  Large,  602,  which 
now  passes  into  the  New  Code  as  Section  77,  in  the  following 
words : 

"Sec.  77.  Whoever  shall  use  or  attempt  to  use,  or  shall  aid, 
assist,  or  participate  in  the  use  of  any  certificate  of  citizenship, 
Imowing  the  same  to  be  forged,  counterfeit,  or  antedated,  or 
Imowing  the  same  to  have  been  procured  by  fraud  or  otherwise 
lualawfully  obtained ;  or  whoever,  without  lawful  excuse,  shall 
loiowingly  possess  any  false,  forged,  antedated,  or  counterfeit  cer- 
tificate of  citizenship  purporting  to  have  been  issued  under  any 
law  of  the  United  States  relating  to  naturalization,  knowing  such 
certificate  to  be  false,  forged,  antedated,  or  counterfeit,  with  the 
intent  imlawfully  to  use  the  same ;  or  whoever  shall  obtain,  accept, 
or  receive  any  certificate  of  citizenship,  knowing  the  same  to  have 
been  procured  by  fraud  or  by  the  use  or  means  of  any  false  name 
or  statement  given  or  made  with  the  intent  to  procure,  or  to  aid 
in  procuring,  the  issuance  of  such  certificate,  or  knowing  the  same 
to  have  been  fraudulently  altered  or  antedated ;  or  whoever,  with- 
out lawful  excuse,  shall  have  in  his  possession  any  blank  certifi- 
cate of  citizenship  provided  by  the  Bureau  of  Immigration  and 


OFFENSES  AGAINST  OPERATIONS  OF  THE  GOVERNMENT  251 

Naturalization  with  the  intent  unlawfully  to  use  the  same ;  or 
whoever,  after  having  been  admitted  to  be  a  citizen,  shall,  on  oath 
or  by  affidavit,  knowingly  deny  that  he  has  been  so  admitted,  with 
the  intent  to  evade  or  avoid  any  duty  or  liability  imposed  or  re- 
quired by  law,  shall  be  fined  not  more  than  one  thousand  dollars, 
or  imprisoned  not  more  than  five  years,  or  both. " 

The  rule  announced  in  United  States  vs.  Melfi,  118  Federal, 
902,  which  was  a  prosecution  for  conspiracy  to  commit  an  offense 
against  the  United  States  by  causing  a  violation  of  Section  5425, 
is  applicable  to  the  drafting  of  indictments  imder  the  new  section, 
and  it  will,  therefore,  be  observed  that  one  of  the  essential  in- 
gredients of  the  offense  is  that  the  person  who  should  obtain,  ac- 
cept, or  receive  a  certificate  of  citizenship,  who  should  do  so  with 
knowledge  on  his  part  that  it  had  been  procured  by  means  of 
false  statements  made  with  intent  to  procure  or  aid  in  procuring 
the  issue  of  such  certificate. 

Running  throughout  these  naturalization  laws,  is  the  use  of  the 
word  "knowingly,"  and  the  pleader  must  not  assume  that  such 
word  was  used  by  Congress  unintentionally.  It  is  absolutely 
necessary  to  show  Imowledge,  both  in  allegation  and  in  proof. 

§  220.  Using  False  Certificate,  Etc.,  as  Evidence  of  Right  to 
Vote. — Section  78  of  the  New  Code  displaces  old  Section  5426,  and 
is  in  the  following  words : 

"Sec.  78.  Whoever  shall  in  any  manner  use,  for  the  purpose 
of  registering  as  a  voter,  or  as  evidence  of  a  right  to  vote,  or  oth- 
erwise unlawfully,  any  order,  certificate  of  citizenship,  or  certifi- 
cate, judgment,  or  exemplification,  showing  any  person  to  be  ad- 
mitted to  be  a  citizen,  whether  heretofore  or  hereafter  issued  or 
made,  Imowing  that  such  order,  certificate,  judgment,  or  exem- 
plification has  been  unlawfully  issued  or  made ;  or  whoever  shall 
unlawfully  use,  or  attempt  to  use,  any  such  order  or  certificate, 
issued  to  or  in  the  name  of  any  other  person,  or  in  a  fictitious 
name,  or  the  name  of  a  deceased  person,  shall  be  fined  not  more 
than  one  thousand  dollars,  or  imprisoned  not  more  than  five 
years,  or  both." 

Bearing  in  mind  the  observation  that  has  been  so  often  re- 
peated as  to  the  use  of  the  word  "knowledge"  or  "knowingly"  in 
these  naturalization  statutes,  it  is  well  to  call  attention  to  the 
ease  of  United  States  vs.  Lehman,  39  Federal,  768,  where  Judge 
Thayer  held  that  an  indictment  for  a  violation  of  such  statute, 


252     OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT 

which  describes  the  fraud  without  describing  the  facts  constitut- 
ing the  fraud,  is  bad,  though  the  allegation  be  made  that  such 
acts  are  unknown  to  the  grand  jury.  In  the  matter  of  Coleman, 
15  Blatchf.,  406,  it  was  held  that  knowledge  that  the  certificate 
was  unlawfully  issued  or  made  was  necessary  to  constitute  an 
offense  under  the  section.  There  can  be  no  conviction  when  it  ap- 
pears that  the  defendant  complied  fully  with  all  the  conditions 
imposed  on  him  as  prerequisite  to  his  admission  and  that  the  un- 
lawfulness, if  any,  was  in  the  want  of  form  in  the  record  of  the 
Court.  So,  in  United  States  vs.  Burley,  14  Blatchf.,  U.  S.,  91, 
where  the  defendant  was  indicted  under  this  section  and  the 
proof  showed  that  the  defendant  had  registered  as  a  voter  upon 
the  protection  of  the  certificate,  which  certificate  had  been  issued 
when  the  applicant  was  not  in  Court,  and  without  any  oath 
taken  by  him,  the  certificate  being  regular  upon  its  face,  the  mere 
fact  that  the  defendant  knew  that  the  certificate  had  been  issued 
without  his  presence  in  Court,  and  without  any  oath  being  taken 
by  him,  was  not  sufficient  to  warrant  a  conviction. 

§  221.  Falsely  Claiming  Citizenship. — Section  5428  of  the  old 
statutes,  becomes  Section  79  of  the  New  Code  in  the  following 
words : 

"Sec.  79.  Whoever  shall  knowingly  use  any  certificate  of  nat- 
uralization heretofore  or  which  hereafter  may  be  granted  by  any 
court,  which  has  been  or  may  be  procured  through  fraud  or  by 
false  evidence,  or  which  has  been  or  may  hereafter  be  issued  by 
the  clerk  or  any  other  officer  of  the  court  without  any  appearance 
and  hearing  of  the  applicant  in  court  and  without  lawful  au- 
thority ;  or  whoever,  for  any  fraudulent  purpose  whatever,  shall 
falsely  represent  himself  to  be  a  citizen  of  the  United  States  with- 
out having  been  duly  admitted  to  citizenship,  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more  than  two 
years,  or  both. ' ' 

The  word  "duly"  in  the  section,  on  the  authority  of  Judge 
Chatfield  in  United  States  vs.  Hamilton,  157  Federal,  569,  ap- 
plies to  a  regular  compliance  with  requirements,  rather  than  to 
the  truth  of  the  facts  involved  in  the  admission,  and  where  the 
person  charged  was  granted  a  certificate  of  citizenship  by  an  or- 
der of  Court,  both  of  which  are  regular  in  form,  and  have  not 
been  vacated,  it  is  impossible  to  charge  unlawful  use,  based  solely 


OFFENSES  AGAINST  OPEEATIONS  OF  THE  GOVERNMENT  253 

upon  a  further  allegation  of  knowledge  that  the  certificate  had 
not  been  duly  made. 

In  Green  vs.  United  States,  150  Federal,  560.  the  Circuit  Court 
of  Appeals  for  the  Ninth  Circuit  held  that  an  alien  who  know- 
ingly makes  a  false  affidavit  that  he  has  been  duly  naturalized  as 
a  citizen  of  the  United  States,  before  a  Registration  Officer  for  the 
purpose  of  procuring  himself  to  be  registered  as  a  voter  at  an 
approaching  election  in  a  State,  commits  an  offense  under  this 
section.  That  Court  also  held  that  it  is  not  necessary  that  the 
false  certificate  be  actually  used  for  an  unlawful  purpose  to  con- 
stitute the  offense  denounced  by  the  statute. 

§  222.  Taking  False  Oath  in  Naturalization. — Section  80  of  the 
New  Code  re-enacts  old  Section  5395  in  the  following  w^ords: 

"Sec.  80.  AVhoever,  in  any  proceeding  under  or  by  virtue  of 
any  law  relating  to  the  naturalization  of  aliens,  shall  knowingly 
swear  falsely  in  any  case  where  an  oath  is  made  or  affidavit  taken; 
shall  be  fined  not  more  than  one  thousand  dollars  and  imprisoned 
not  more  than  five  years." 

In  United  States  vs.  Moore,  144  Federal,  962,  the  Circuit  Court 
of  Appeals  passes  upon  a  form  of  an  indictment  under  this  sec- 
tion, and  says  that  in  prosecutions  for  perjury  and  in  prosecu- 
tions akin  thereto,  it  is  a  fundamental  rule  that  an  indictment 
must  show  that  the  tribunal  before  which  the  offense  is  alleged 
to  have  occurred  had  jurisdiction  over  the  issue  to  which  it  re- 
lated. It  is  also  a  fundamental  rule  that  it  is  not  sufficient  to 
allege  in  general  terms  that  the  tribunal  named  had  jurisdiction 
over  the  issue  alleged  to  have  been  involved,  because  such  an  alle- 
gation includes  matters  of  law,  as  well  as  fact;  while  it  is  the 
duty  and  right  of  the  court  before  which  an  indictment  is  pend- 
ing to  be  so  far  advised  of  the  facts  that  it  can  determine  for  it- 
self whether  the  issue  was  of  such  a  character  as  to  give  the  tri- 
bunal named  jurisdiction  thereof,  and  such  as  to  render  the  al- 
leged offense  material  thereto. 

In  the  case  of  Schmidt  vs.  United  States,  133  Federal,  257,  the 
Circuit  Court  of  Appeals  for  the  Ninth  Circuit  held  that  on  the 
trial  of  a  defendant  for  perjury  committed  in  a  naturalization 
proceeding,  his  signature  to  affidavits  filed  in  the  proceeding  is 
admissible  to  prove  the  fact  that  he  was  a  witness  therein,  al- 


254     OFFENSES  AGAINST   OPERATIONS   OF   THE   GOVERNMENT 

though  such  affidavits,  when  signed,  were  in  blank.  So,  too,  in 
that  case  the  Court  held  that  a  defective  final  order  was  admissi- 
ble as  evidence  of  the  facts  therein  stated.  The  Supreme  Court, 
in  Holgren  vs.  United  States,  October  Term,  1909,  affirms  same 
case,  156  Fed.,  439,  the  principal  question  being  whether,  under 
this  section,  a  conviction  can  be  had  in  a  Federal  Court  for  a 
false  oath  thereunder  in  a  State  Court.    Held,  that  it  could. 

§  223.  Provisions  Applicable  to  All  Courts  of  Naturalization. — 
Section  5429  of  the  old  statutes  is  re-enacted  into  Section  81  of 
the  New  Code,  and  some  new  words  are  added  for  the  purpose  of 
showing  that  the  penal  provisions  above  treated  are  applicable  to 
proceedings  had  or  taken  in  any  Court,  and  reads  as  follows : 

''Sec.  81.  The  provisions  of  the  five  sections  last  preceding 
shall  apply  to  all  proceedings  had  or  taken,  or  attempted  to  be 
had  or  taken,  before  any  court  in  which  any  proceedings  for 
naturalization  may  be  commenced  or  attempted  to  be  commenced, 
and  wdiether  such  court  was  vested  by  law  with  jurisdiction  in 
naturalization  proceedings  or  not." 

See  Holgren  vs.  United  States,  156  Federal,  439,  affirmed  by 
Supreme  Court,  October  Term,  1909. 

§  224.  Corporations,  Etc.,  Not  to  Contribute  Money  for  Political 
Elections,  Etc.— The  Act  of  January  26.  1907,  34  Statute  at 
Large,  becomes  Section  83  of  the  New  Code,  in  the  following 
words : 

"Sec.  83.  It  shall  be  unlawful  for  any  national  bank,  or  any 
corporation  organized  by  authority  of  any  law  of  Congress,  to 
make  a  money  contribution  in  connection  with  any  election  to  any 
political  office.  It  shall  also  be  unlawful  for  any  corporation 
w^hatever  to  make  a  money  contribution  in  connection  with  any 
election  at  which  Presidential  and  Vice-Presidential  electors  or  a 
Representative  in  Congress  is  to  be  voted  for,  or  any  election  by 
any  state  legislature  of  a  United  States  Senator.  Every  corpora- 
tion which  shall  make  any  contribution  in  violation  of  the  fore- 
going provisions  shall  be  fined  not  more  than  five  thousand  dol- 
lars; and  every  officer  or  director  of  any  corporation  who  shall 
consent  to  any  contribution  by  the  corporation  in  violation  of  the 
foregoing  provisions  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  one  year,  or  both." 


CHAPTER  VIII. 

OFFENSES  AGAINST  THE  EXISTENCE  OF  THE  GOV- 
ERNMENT. 

§  225.  Treason,  Generally. 

226.  The  Statute:  5331—1. 

227.  Punishment:   5332—2. 

228.  Misprision  of  Treason:   5333—3. 

229.  Inciting  or  Engaging  in  Eebellion  or  Insurrection:   5534 — 4. 

230.  Criminal  Correspondence  with  Foreign  Governments:   5335 — 5. 

231.  Seditious  Conspiracy:   5336 — 6. 

232.  Eecruiting  Soldiers  or  Sailors  to  Serve  Against  the  United  States: 

5337—7. 

233.  Enlistment  to  Serve  Against  the  United  States:   5338 — 8. 

^  225.  Treason. — At  the  time  of  the  formation  of  this  Republic, 
treasons  were  numerous  in  Enghuid.  They  were  divided  into 
high  and  petit.  By  the  old  Common  Law,  there  were  several 
forms  of  petit  treason,  which  later,  by  English  statute,  were  re- 
duced to  three.  These  were :  the  killing  by  a  servant  of  his  mas- 
ter; the  killing  of  a  husband  by  the  wife;  and  the  killing  of  a 
prelate  by  an  ecclesiastic  owing  him  obedience.  All  these  petit 
treasons  were  abolished,  however,  in  1828,  and  there  remains  now 
but  one  sort,  and  that  is  high  treason.  So,  when  the  word  "trea-  • 
son"  is  used,  it  means  high  treason.  Under  the  United  States 
laws,  there  are  no  Common  Law  crimes,  and  treason,  as  defined  in 
the  Constitution  of  the  United  States,  consists  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.  The  meaning  of  the  words  "levying  war,"  and  the 
other  words,  "adhering  to  their  enemies,  giving  them  aid  and 
comfort,"  is  to  be  found  in  the  Common  Law  doctrine  of  an  aider 
at  the  fact,  as  applicable  to  the  levying  of  war  in  treason.  The 
meaning  of  war,  as  defined  by  Bishop,  is  an  attempt,  by  force, 
either  to  subjugate  or  to  overthrow  the  Government  against  which 
it  is  levied.    Ordinarily,  where  the  overthrow  is  not  contemplated, 

255 


256     OFFENSES  AGAINST  EXISTENCE  OF  THE  GOVERNMENT 

a  treaty  acknowledging  rights  previously  denied  is  expected.  If 
a  body  of  men,  mistakenly  deeming  a  particular  statute  to  violate 
fundamental  or  constitutional  right,  combine  to  oppose  b}^  force 
its  execution,  and  commit  therein  an  overt  act,  they  are  undoubt- 
edly guilty  of  treason,  provided,  it  is  their  determination  also  to 
resist  by  violence  every  attempt  to  bring  them  to  justice  and  to 
continue  this  course  until  the  Government  is  compelled  to  yield  to 
them.  Bishop's  New  Criminal  Law,  Second  Volume,  page  703. 
The  same  writer,  in  answering  the  question.  What  is  levying  war? 
says  that  in  legal  reason  a  levying  of  war  consists  of  two  elements, 
neither  of  which  can  be  dispensed  with :  the  one  is  the  intent  ex- 
isting as  of  fact  in  the  mind  of  the  accused  person,  either  to  over- 
throw the  Government,  or  to  compel  it,  through  fear,  to  yield 
something  to  which  it  would  not  voluntarily  assent;  the  other  is 
some  overt  act  in  the  nature  of  war  or  preparation  therefor,  or 
threatening  it,  as  an  array  of  persons  assembled  for  war,  or  some 
war-like  violence,  or  some  other  step  menacing  war.  Yet,  we  must 
admit  that  it  is  legally  possible  for  one  man  alone  to  levy  war 
upon  his  Government,  and  be  guilty  of  treason.  Second  Bishop's 
Criminal  Law,  704. 

§  226.  The  statute. — In  line  with  the  Constitutional  definition 
of  treason  was  old  Statute  5331,  which  is  re-enacted  into  Section 
1  of  the  New  Code,  which  reads  as  follows : 

"Sec.  1.  "Whoever,  owing  allegiance  to  the  United  States, 
levies  war  against  them  or  adheres  to  their  enemies,  giving  them 
aid  and  comfort  within  the  United  States  or  elsewhere,  is  guilty 
of  treason." 

In  1  Story,  U.  S..  614,  30  Federal  Case,  18275,  the  following 
charge  was  given  to  a  grand  jury : 

"It  is  not  every  act  of  treason  by  levying  war  that  is  treason 
against  the  United  States.  It  may  be,  and  often  is,  aimed  alto- 
gether against  the  sovereignty  of  a  particular  state.  Thus,  for 
example,  if  the  object  of  an  assembly  of  persons  met  with  force 
is  to  overthrow  the  Government  or  Constitution  of  a  State,  or  to 
prevent  the  due  exercise  of  its  sovereign  powers,  or  to  resist  the 
exercises  of  any  one  or  more  of  its  general  laws,  but  w^ithout  any 
intention  whatsoever  to  intermeddle  with  the  relations  of  that 
State  with  the  national  Government,  or  to  displace  the  national 
laws  or  sovereignty  therein : — every  overt  act  done  with  force  to- 
ward the  execution  of  such  a  treasonable  purpose  is  treason 


OFFENSES  AGAINST  EXISTENCE  OF  THE  GOVERNMENT     257 

against  the  State,  and  against  the  State  only.  But  treason  may- 
be begun  against  a  State  and  may  be  mixed  up  or  merged  in  trea- 
son against  the  United  States.  Thus,  if  the  treasonable  purpose 
be  to  overthrow  the  Government  of  the  State  and  forcibly  to 
withdraw  it  from  the  Union,  and  thereby  to  prevent  the  exercise 
of  the  national  sovereignty  within  the  limits  of  the  State,  that 
would  be  treason  against  the  United  States." 

In  United  States  vs.  Wiltberger,  5  "Wheat.,  U.  S.,  76,  treason 
was  defined  as  a  breach  of  allegiance,  and  can  be  committed  by 
him  only  who  owes  allegiance,  either  perpetual  or  temporary.  In 
the  case  of  United  States  vs.  Greiner,  26  Federal  Case  No.  15262, 
it  was  held  that  every  step  taken  by  anyone  of  an  armed  body  of 
men  mustered  into  military  array  for  a  treasonable  purpose,  by 
marching  or  otherwise,  in  part  execution  of  that  purpose,  is  an 
overt  act  of  treason  in  levying  war.  See  also  U.  S.  vs.  Vilato,  2 
DalL,  370;  the  Insurgents,  2  Dall.,  385;  ex  parte  Bohnan  et  al,  4 
Cranch,  75;  U.  S.  vs.  Burr,  4  Cranch,  469;  Carlyle  vs.  U.  S.,  16 
Wallace,  147;  U.  S.  vs.  Burr,  1  Burr's  Trial,  14,  16;  Second 
Burr's  Trial,  402,  page  25,  Federal  Case,  2,  52,  55,  and  210;  U. 
S.  vs.  Cathcart,  1  Bond,  556;  25  Federal  Case,  344;  U.  S.  vs. 
Greathouse,  26  Federal  Case,  818 ;  U.  S.  vs.  Hodges,  26  Federal 
Cases,  332 ;  U.  S.  vs.  Hoxie,  26  Federal  Case,  397 ;  U.  S.  vs.  Mit- 
chell, 2  Dall.,  26,  Federal  Case,  1277 ;  U.  S.  vs.  Vigol,  28  Federal 
Case,  376;  U.  S.  vs.  Pryor,  27  Federal  Case,  628;  Charges  to 
Grand  Jury,  2  Curt.,  630,  30  Federal  Case,  1024,  4  Blatchf.,  518 ; 
30  Federal  Case,  1032;  5  Blatchf.,  549;  30  Federal  Case,  1034;  1 
Bond,  609,  30  Federal  Case,  1036;  30  Federal  Case,  1039;  30 
Federal  Case,  1042;  30  Federal  Case,  1046;  30  Federal  Case, 
1047 ;  30  Federal  Case,  1049.  One  of  the  most  interesting  cases, 
in  its  treatment  of  the  evidence  necessary  to  establish  the  offense, 
will  be  found  in  United  States  vs.  Burr,  25  Federal  Case,  No. 
14693. 

§  227.  Punishment. — The  piuiishment  for  treason  is  the  same 
under  Section  2  of  the  new  Code  as  it  was  under  the  old  Statute 
5332,  the  new  section  reading  as  follows: 

"Sec,  2.  Whoever  is  convicted  of  treason  shall  suffer  death; 
or,  at  the  discretion  of  the  court,  shall  be  imprisoned  not  less  than 
five  years  and  fined  not  less  than  ten  thousand  dollars,  to  be  levied 
on  and  collected  out  of  any  or  all  of  his  property,  real  and  per^ 


258     OFFENSES  AGAINST  EXISTENCE  OF  THE  GOVERNMENT 

sonal,  of  which  he  was  the  owner  at  the  time  of  committing  such 
treason,  any  sale  or  convej^anee  to  the  eontraiy  notAvithstanding; 
and  every  person  so  convicted  of  treason  shall,  moreover,  be  in- 
capable of  holding  any  office  under  the  United  States. ' ' 

In  Davis  case,  Chase,  U.  S.,  page  1,  7  Federal  Case  No.  3621 -a, 
it  was  held  that  treason  under  this  section  is  bailable. 

It  was  held  in  Wallace  vs.  Van  Riswick,  92  U.  S.,  202,  23  Law 
Ed.,  473,  that  after  an  adjudicated  forfeiture  and  sale  of  an  en- 
emy's land,  under  the  Confiscation  Act  of  Congress  of  July  7, 
1862,  and  the  general  resolution  of  even  date  therewith,  that  there 
was  not  left  in  him  any  interest  which  he  could  convey  by  deed. 

In  Windsor  vs.  McVeigh,  93  U.  S.,  274,  23  Law  Ed.,  page  914, 
the  Supreme  Court  held  that  the  jurisdiction  acquired  by  the 
seizure  of  the  property  in  a  proceeding  in  rem,  for  its  condemna- 
tion, is  not  to  pass  upon  the  question  of  forfeiture  absolutely,  but 
to  pass  upon  that  question  after  opportunity  has  been  offered  to 
its  owner  and  parties  interested  to  appear  and  be  heard  upon  the 
charges  for  which  the  forfeiture  is  claimed.  To  that  end,  some 
notification  of  the  proceedings,  beyond  that  arising  from  the  seiz- 
ure prescribing  the  time  within  which  the  appearance  must  be 
made,  is  essential. 

.^  228.  Misprision  of  Treason. — Section  3  of  the  New  Code, 
which  takes  the  place  of  the  old  Statute  5333,  is  in  the  following 
words : 

"Sec.  3.  Whoever,  owing  allegiance  to  the  United  States  and 
having  knowledge  of  the  commission  of  any  treason  against  them, 
conceals,  and  does  not,  as  soon  as  may  be,  disclose  and  make 
known  the  same  to  the  President  or  to  some  judge  of  the  United 
States,  or  to  the  governor  or  to  some  judge  or  justice  of  a  partic- 
ular State,  is  guilty  of  misprision  of  treason  and  shall  be  im- 
prisoned not  more  than  seven  years  and  fined  not  more  than  one 
thousand  dollars." 

Cases  of  more  or  less  interest,  bearing  upon  the  statute,  are 
United  States  vs.  Wiltberger,  5  Wheat.,  97 ;  Confiscation  cases,  1 
Woods,  221,  6  Federal  Case,  270;  U.  S.  vs.  Tract  of  Land,  1 
Woods,  475 ;  28  Federal  Case,  203. 

Misprision,  whether  of  felony  or  of  treason,  is  defined  by  the 
text-book  writers  as  criminal  negligence  either  to  prevent  it  from 
being  committed,  or  to  bring  to  justice  the  offender  after  its  com^ 


OFFENSES  AGAINST   EXISTENCE  OF  THE  GOVERNMENT     259 

mission.  The  statute  under  consideration  seems  to  be  limited  by 
its  terms,  not  to  a  prevention  of  the  offense  of  treason,  but  to  the 
disclosure  of  the  knowledge  of  the  commission  as  soon  as  may  be. 
§  229.  Inciting  or  Engaging  in  Rebellion  or  Insurrection. — Sec- 
tion 5334  of  the  old  Statutes  becomes  Section  4  of  the  New  Code, 
in  the  following  words: 

"Sec.  4.  Whoever  incites,  sets  on  foot,  assists,  or  engages  in 
any  rebellion  or  insurrection  against  the  authority  of  the  United 
States  or  the  laws  thereof,  or  gives  aid  or  comfort  thereto,  shall 
be  imprisoned  not  more  than  ten  years,  or  fined  not  more  than  ten 
thousand  dollars,  or  both;  and  shall,  moreover,  be  incapable  of 
holding  any  office  under  the  United  States.'' 

§  230.  Criminal   Correspondence  with  Foreign  Governments. — 

Section  5335  of  the  old  statutes  becomes  Section  5  of  the  New 

Code,  which  reads  as  follows: 

"Sec.  5.  Every  citizen  of  the  United  States,  whether  actually 
resident  or  abiding  within  the  same,  or  in  any  place  subject  to  the 
jurisdiction  thereof,  or  in  any  foreign  country,  without  the  per- 
mission or  authority  of  the  Government,  directly  or  indirectly, 
commences  or  carries  on  any  verbal  or  written  correspondence  or 
intercourse  with  any  foreign  government  or  any  officer  or  agent 
thereof,  with  an  intent  to  influence  the  measures  or  conduct  of  any 
foreign  government  or  of  any  officer  or  agent  thereof,  in  relation 
to  any  disputes  or  controversies  with  the  United  States,  or  to  de- 
feat the  measures  of  the  Government  of  the  United  States ;  and 
every  person,  being  a  citizen  of  or  resident  within  the  United 
States  or  in  any  place  subject  to  the  jurisdiction  thereof,  and  not 
duly  authorized,  counsels,  advises,  or  assists  in  any  such  corre- 
spondence with  such  intent,  shall  be  fined  not  more  than  five 
thousand  dollars  and  imprisoned  not  more  than  three  years;  but 
nothing  in  this  section  shall  be  construed  to  abridge  the  right  of 
a  citizen  to  apply,  himself  or  his  agent,  to  any  foreign  govern- 
ment or  the  agents  thereof  for  redress  of  any  injury  which  he 
may  have  sustained  from  such  government  or  any  of  its  agents 
or  subjects. ' ' 

§  231.  Seditious  Conspiracy. — Section  5336  of  the  old  statutes 
becomes  Section  6  of  the  New  Code,  and  is  as  follows : 

"Sec.  6.  If  two  or  more  persons  in  any  State  or  Territory,  or 
in  any  place  subject  to  the  jurisdiction  of  the  United  States,  con- 
spire to  overthrow,  put  down,  or  to  destroy  by  force  the  Govern- 
ment of  the  United  States,  or  to  levy  war  against  them,  or  to 
oppose  by  force  the  authority  thereof,  or  by  force  to  prevent, 


2G()     OFFENSES  AGAINST  EXISTENCE  OF  THE  GOVERNMENT 

hinder,  or  delay  the  execution  of  any  law  of  the  United  States,  or 
by  force  to  seize,  take,  or  possess  any  property  of  the  United 
States  contraiy  to  the  authority  thereof,  they  shall  each  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not  more  than 
six  years,  or  both." 

§  232.  Recruiting  Soldiers  or  Sailors  to  Serve  Against  the  Uni- 
ted States. — Section  5337  of  the  1878  statutes  becomes  Section  7 
of  the  New  Code,  and  is  as  follows: 

' '  Sec.  7.  "Whoever  recruits  soldiers  or  sailors  within  the  United 
States,  or  in  any  place  subject  to  the  jurisdiction  thereof,  to  en- 
gage in  armed  hostility  against  the  same,  or  opens  within  the 
United  States,  or  in  any  place  subject  to  the  jurisdiction  thereof, 
a  recruiting  station  for  the  enlistment  of  such  soldiers  or  sailors 
to  serve  in  any  manner  in  armed  hostility  against  the  United 
States,  shall  be  fined  not  more  than  one  thousand  dollars  and  im- 
prisoned not  more  than  five  years. ' ' 

§  233.  Enlistment  to  Serve  Against  the  United  States. — Section 
8  of  the  New  Code  displaces  Section  5338  of  the  old  statutes,  and 
is  as  follows: 

"Sec.  8.  Every  person  enlisted  or  engaged  within  the  United 
States  or  in  any  place  subject  to  the  jurisdiction  thereof,  with  in- 
tent to  serve  in  armed  hostility  against  the  United  States,  shall 
be  fined  one  hundred  dollars  and  imprisoned  not  more  than  three 
years." 


CHAPTER  IX. 
OFFENSES  AGAINST  NEUTRALITY. 

§  234.  Neutrality,  Generally. 

235.  Accepting  Foreign  Commission:   5281 — 9. 

236.  Enlisting  in  Foreign  Commission:   5282 — 10. 

237.  Arming  Vessels  Against  People  at  Peace  with  the  United  State?: 

5283—11. 

238.  Forfeiture  of  Vessel  Without  Conviction. 

239.  Augmenting  Force  of  Foreign  Vessel  of  War:    5285 — 12. 

240.  Military    Expeditions    Against    People    at   Peace    with   the   United 

States:  5286—13. 

241.  Enforcement   of  Foregoing  Provisions:    5287 — 14. 

242.  Compelling  Foreign  Vessels  to  Depart:   5288 — 15. 

243.  Armed  Vessels  to  Give  Bond  on  Clearance:   5289 — 16. 

244.  Detention  by  Collector  of  Customs:   5290—17. 

244.  Detention  by  Collector  of  Customs:   5290 — 17. 

245.  Construction  of  this  Chapter:   5291—18. 

§  234.  The  word  "neutrality,"  as  used  with  reference  to  gov- 
ernments and  international  law.  has  no  different  meaning  than 
that  given  to  it  in  the  ordinary  course  of  affairs.  The  Century 
Dictionary  defines  it  as  "the  state  of  being  neutral,  or  of  being 
unengaged  in  a  dispute  or  contest  between  others;  the  taking  of 
no  part  on  either  side ;  in  international  laM'.  the  attitude  and  con- 
dition of  a  nation  or  state,  which  does  not  take  part,  directly  or 
indirectly,  in  a  war  between  other  states,  but  maintains  relations 
of  amity  with  all  the  contending  parties."  The  29  Volume  of 
the  "Cyc",  at  page  675,  citing  the  Three  Friends,  166  U.  S., 
page  1,  41  Law  Ed.,  page  897,  deduces  that  neutrality,  strictly 
speaking,  consists  in  abstinence  from  any  participation  in  a  pub- 
lic, private,  or  civil  war,  and  impartiality  of  conduct  toward  both 
parties.     That  authority,  continuing,  says: 

"The  nation  which,  while  preserving  its  natural  libertj^  and  its 
independence,  remains  at  peace  while  other  nations  are  at  war, 
and  which  continues  to  maintain  with  the  two  beligerent  nations 
the  friendly  relations  of  commerce,  or  only  of  sociality,  or  of  hu- 

261 


262  OFFENSES  AGAINST  NEUTRALITY 

manity,  existing  before  the  out-break  of  hostilities,  may  call  itself 
neutral.  This  quality  imposes  upon  it  the  obligations  which  may 
be  sumed  up  in  two  principles,  and  which  embrace  all  the  oth- 
ers: abstaining  from  all  acts  of  hostility,  direct  or  indirect:  and 
perfect  impartiality  between  the  two  nations  at  war,  respecting 
all  matters  affecting  the  war." 

From  these  definitions,  one  readily  discovers  that  neutrality,  in 
a  measure,  interferes  with  the  liberty  and  independence  of  the 
nation  preserving  that  status. 

The  United  States  was  one  of  the  earliest  countries  to  preserve 
by  law  its  netrality  with  reference  to  conflicts  between  other  gov- 
ernments and  nationalities.  While  there  are  international  pun- 
ishments for  a  failure  to  observe  the  full  measure  of  neutrality, 
the  most  effective  preventive  is  the  penal  code,  which  creates  of- 
fenses under  this  head,  and  affixes  punishments  therefor ;  and  in 
construing  such  statutes,  the  same  rules  are  to  be  applied  and 
observed  as  govern  the  construction  of  other  penal  statutes. 

§  235.  Accepting  Foreign  Commission. — Section  9  of  the  New 
Code  re-enacts  old  Section  5281,  and  is  in  the  following  language: 

"Sec.  9.  Every  citizen  of  the  United  States  who,  within  the 
territory  or  jurisdiction  thereof,  accepts  and  exercises  a  commis- 
sion to  serve  a  foreign  prince,  state,  colony,  district,  or  people,  in 
war,  by  land  or  by  sea,  against  any  prince,  state,  colony,  district, 
or  people,  with  whom  the  United  States  are  at  peace,  shall  be 
fined  not  more  than  two  thousand  dollars  and  imprisoned  not 
more  than  three  years.'' 

The  wording  of  the  statute  bears  the  construction  that  the 
mere  acceptance  of  a  commission  of  the  sort  therein  described 
would  not  create  the  offense.  It  is  necessary  that  some  overt  act 
be  committed  under  the  commission,  such  as  raising  men  for  the 
enterprise,  collecting  provisions,  munitions  of  war,  or  any  other 
act  which  shows  an  exercise  of  the  authority  which  the  commission 
is  supposed  to  confer.  29  Cyc,  678  ;  in  re  Charge  to  Grand  Jury, 
30  Federal  Case  No.  18265.  2  McLean,  1. 

§  236.  Enlisting  in  Foreign  Service. — Old  Section  5282  becomes 
Section  10  of  the  New  Code,  in  the  following  words: 

"Whoever,  within  the  territory  or  jurisdiction  of  the  United 
States,  enlists,  or  enters  himself,  or  hires  or  retains  another  per- 
son to  enlist  or  enter  himself,  or  to  go  beyond  the  limits  or  juris- 
diction of  the  United  States  with  intent  to  be  enlisted  or  entered 


OFFENSES  AGAINST  NEUTEALITY  263 

in  the  service  of  any  foreign  prince,  state,  colony,  district,  or 
people,  as  a  soldier,  or  as  a  marine  or  seaman,  on  board  of  any 
vessel  of  war,  letter  of  marque,  or  privateer,  shall  be  fined  not 
more  than  one  thousand  dollars,  and  imprisoned  not  more  than 
three  years." 

The  Courts  have  held,  in  construing  this  section.  United 
States  vs.  Obrien  et  al,  75  Federal,  900,  that  persons  are  not  only 
prohibited  from  enlisting  in  this  country  as  a  soldier  of  any  for- 
eign power,  but  they  are  also  prohibited  from  hiring  or  retaining 
any  other  person  to  enlist  or  to  go  abroad  for  the  purpose  of  en- 
listing. The  Court  also  observes  in  that  case,  which  seems  to 
have  been  followed,  that  the  statute  does  not  prohibit  persons 
within  our  jurisdiction,  whether  citizens  or  not,  going  as  indi- 
viduals to  foreign  states,  and  there  enlisting  in  their  armies,  and 
that  individuals  may  go  abroad  to  enlist  in  any  number  and  in 
any  way  they  see  fit ;  by  regular  line  of  steamers,  by  chartering  a 
vessel,  or  in  any  other  manner,  either  separately.,  or  associated, 
provided  always,  that  they  do  not  go  as  a  military  expedition,  or 
set  on  foot  or  begin  within  our  jurisdiction  a  military  expedition 
or  enterprise,  to  be  carried  on  for  this  country,  or  provide  or 
prepare  the  means  therefor. 

If,  however,  a  military  expedition  or  enterprise  has  in  fact  been 
prepared  in  this  country,  and  carried  by  sea  to  a  foreign  shore, 
then  all  persons  who  planned  for  it,  or  prepared  for  it  here,  or 
knowingly  took  part  in  the  transportation  of  it,  are  guilty  imder 
the  statute.    V.  S.  vs.  Obrien,  75  Federal,  page  900. 

§  237.  Arming  Vessels  Against  People  at  Peace  with  the  United 
States. — Old  Section  5238  becomes  new  Section  1 1 ,  and  is  as  fol- 
lows : 

"Sec.  11.  Whoever,  within  the  territory  or  jurisdiction  of  the 
United  States,  fits  out  and  arms,  or  attempts  to  fit  out  and  arm, 
or  procures  to  be  fitted  out  and  armed,  or  knowingly  is  con- 
cerned in  the  furnishing,  fitting  out,  or  arming  of  any  vessel,  with 
intent  that  such  vessel  shall  be  employed  in  the  service  of  any 
foreign  prince  or  state,  or  of  any  colony,  district,  or  people,  to 
cruise  or  commit  hostilities  against  the  subjects,  citizens,  or 
property  of  any  foreign  prince  or  state,  or  of  any  colony,  district, 
or  people,  with  whom  the  United  States  are  at  peace,  or  whoever 
issues  or  delivers  a  commission  within  the  territory  or  jurisdiction 
of  the  United  States  for  any  vessel,  to  the  intent  that  she  may  be 


264  OFFENSES  AGAINST  NEUTRALITY 

SO  employed,  shall  be  fined  not  more  than  ten  thousand  dollars, 
and  imprisoned  not  more  than  three  years.  And  every  such 
vessel,  her  tackle,  apparel,  and  furniture,  together  with  all  ma- 
terials, arms,  ammunition,  and  stores  which  may  have  been  pro- 
cured for  the  building  and  equipment  thereof,  shall  be  forfeited; 
one-half  to  the  use  of  the  informer  and  the  other  half  to  the  use 
of  the  United  States." 

The  statute  contains  two  methods  of  punishment,  it  will  be  no- 
ticed: one  against  the  person,  and  one  against  the  property;  that 
is,  the  imprisonment  of  the  offender  and  the  forfeiture  of  his 
vessel.   The  Supreme  Court  of  the  United  States,  in  Wiborg  et  al 
vs.  United  States,  163  U.  S.,  page  632,  41  Law  Ed.,  page  289,  in 
passing  upon  a  case  that  originated  in  Pennsylvania,  under  Sec- 
tion 5286,  hereinafter  noted,  the  facts  of  which  showed  in  sub- 
stance, that  the  "Horsa,"  a  Danish  steamer  engaged  in  the  fruit 
business  at  Philadelphia,  cleared  from  Philadelphia  for  Jamaica, 
having  only  a  small  cargo ;  that  thereafter,  near  Barnegat,  off  the 
Jersey  coast,  she  was  loaded  with  a  cargo  of  men  and  rifles, 
swords,  machettes,  cartridges,  and  other  munitions  of  war,  which 
cargo  was  subsequently  delivered  to  Cuba,  where  there  was  an 
insurrection  of  the  Cubans  against  the  Spaniards,  said  in  sub- 
stance, a  military  expedition  or  enterprise  is  entered  upon  when 
men  with  knowledge  of  the  enterprise  combine  and  organize  in 
this  country,  and  are  carried  with  arms  and  ammunition  under 
their  control,  by  a  tug,  thirty  or  forty  miles  out  to  sea,  to  a 
steamer,  on  which  they  embark  and  drill,  and  by  which  they  are 
taken  to  Cuba,  where  they  disembark  to  effect  an  armed  landing 
on  the  coast,  with  intent  to  make  war  against  a  government  with 
which  the  United  States  is  at  peace ;  and  in  determining  whether 
the  combination  was  lawful  or  not,  the  declarations  of  those  en- 
gaged in  it,  explanatory  of  acts  done  in  furtherance  of  its  object, 
are  competent  evidence  after  the  combination  has  been  proved. 

Another  interesting  authority  under  this  section,  as  well  as 
other  sections  under  this  chapter,  is  the  Lauradra,  85  Federal, 
760,  which  was  a  case  that  originated  upon  a  similar  state  of  facts 
to  the  Wiborg  case,  and  was  the  loading  of  a  fruit  vessel  off  the 
American  coast,  near  Barnegat,  with  men  and  munitions,  for  en- 
gagement in  the  Cuban  revolution.  In  that  case,  the  Court  ob- 
served that  while  it  was  not  the  purpose  of  our  neutrality  laws 


OFFENSES  AGAINST  NEUTRALITY  265 

in  any  manner  to  check  or  interfere  with  the  commercial  activity 
of  citizens  of  the  United  States,  or  of  others  residing  therein,  and 
interested  in  commercial  transactions,  nor  to  render  unlawful 
mere  commercial  ventures  in  contraband  of  war,  they  were  de- 
signed to  prohibit  acts  and  preparations  on  the  soil  or  waters  of 
the  United  States  not  originating  with  a  due  regard  for  com- 
mercial interest,  but  of  a  nature  distinctly  hostile  in  a  material 
sense  to  a  friendly  power  engaged  in  hostilities,  and  calculated 
or  tending  to  involve  this  country  in  war,  whether  an  incidental 
or  direct  commercial  profit  does  or  does  not  result  therefrom. 

District  Judge  Bradford,  in  considering  the  above-mentioned 
case,  held  that  it  was  necessary,  for  the  forfeiture  of  the  vessel 
under  5283,  that  the  furnishing,  fitting  out,  or  arming  of  her 
for  the  prohibited  should  be  completed  within  the  limits  of  the 
United  States.  It  was  also  determined  that  it  was  sufficient,  if  by 
pre-arrangement  within  the  limits  of  the  United  States,  the  vessel 
having  been  procured  there,  the  furnishing,  fitting  out,  or  arming 
was  to  be  effected  or  completed  after  she  had  gone  beyond  the 
limits  of  the  United  States;  and  further,  that  the  intent  that  a 
vessel  furnished,  fitted  out,  or  armed  to  cruise  or  commit  hostil- 
ities against  the  subjects  or  property  of  a  foreign  prince  with 
whom  the  United  States  is  at  peace,  shall  be  formed  within  the 
limits  of  the  United  States,  and  shall  be  of  a  fixed  and  uncondi- 
tional nature.  If  such  intent  originates  on  the  high  seas,  beyond 
the  limits  of  the  United  States,  though  on  an  American  vessel, 
which  then,  for  the  first  time,  is  intended  to  commit  such  hostil- 
ities, no  forfeiture  accrues  under  the  section. 

§  238.  Forfeiture  Without  Conviction. — On  the  authority  of  the 
United  States  against  the  Three  Friends,  166  U.  S.,  page  1,  Law- 
yers' Edition,  Book  41,  page  915,  it  may  be  stated  as  the  law  that 
a  civil  suit  in  rem  for  the  condemnation  of  the  vessel  is  not  a 
criminal  prosecution,  and  the  success  of  such  suit  does  not  de- 
pend upon  the  conviction  of  a  person  or  persons  doing  the  acts 
denounced  in  the  statute.  The  two  proceedings  are  wholly  inde- 
pendent, and  pursued  in  different  courts.  In  deed,  forfeiture 
might  be  decreed,  if  the  proof  showed  the  prohibited  acts  were 
committed,  though  lacking  as  to  the  identity  of  the  person  by 
w^hom  they  were  committed.    In  deciding  the  Three  Friends  case, 


266  OFFENSES  AGAINST  NEUTRALITY 

and  giving  expression  to  the  opinion  as  above  quoted  in  substance, 
the  Supreme  Court  cited  the  "Palmyra,"  25  U.  S.,  12  Wheat., 
I;  6  Law  Ed.,  531;  "Ambrose  Light,"  25  Federal,  408;  the 
"Meteor,"  17  Federal  Cases,  178.  The  Supreme  Court  also  held 
in  the  Three  Friends  case,  cited  supra,  that  the  release  on  bond 
of  a  vessel  charged  with  liability  to  forfeiture  imder  this  section, 
before  answer  or  hearing,  and  against  the  objection  of  the  United 
States,  when  such  release  might  result  in  a  hostile  expedition 
against  a  friendly  power,  should  not  be  allowed ;  and  if  such  an 
order  of  release  is  improvidently  made,  the  vessel  should  be  re- 
called. 

^  239.  Augmenting  Force  of  Foreign  Vessel  of  War. — Revised 
Statutes  5285  becomes  Section  12  of  the  New  Code,  in  the  fol- 
lowing words : 

"Sec.  12.  Whoever,  within  the  territory  or  jurisdiction  of  the 
United  States,  increases  or  augments,  or  procures  to  be  increased 
or  augmented,  or  knowingly  is  concerned  in  increasing  or  aug- 
menting, the  force  of  any  ship  of  war,  cruiser,  or  other  armed 
vessel  which,  at  the  time  of  her  arrival  within  the  United  States, 
was  a  ship  of  war,  or  cruiser,  or  armed  vessel,  in  the  service  of 
any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people, 
or  belonging  to  the  subjects  or  citizens  of  any  such  prince  or 
state,  colony,  district,  or  people,  the  same  being  at  war  with  any 
foreign  prince  or  state,  or  of  any  colony,  district,  or  people,  with 
whom  the  United  States  are  at  peace,  by  adding  to  the  number  of 
the  guns  of  such  vessel,  or  by  changing  those  on  board  of  her  for 
guns  of  a  larger  caliber,  or  by  adding  thereto  any  equipment 
solely  applicable  to  war,  shall  be  fined  not  more  than  one  thou- 
sand dollars  and  imprisoned  not  more  than  one  year." 

This  statute,  in  substance,  makes  it  an  offense  for  any  person 
to  increase  or  augment,  within  the  territory  of  the  United  States, 
any  war  vessel  belonging  to  a  foreign  power.  Such  ecjuipment, 
within  the  meaning  of  the  statute,  must  be  intended  solely  for 
the  purpose  of  war.  See  Alerta  vs.  Moran,  9  Cranch,  359 ;  U.  S. 
vs.  Grassin.  3  Wasliington.  65;  26  Federal  Cases,  10. 

^  240.  Military  Expeditions  Against  People  at  Peace  with  the 
United  States. — Old  Section  5286  becomes  Section  13,  as  follows: 

"Sec.  13.  Whoever,  within  the  territory  or  jurisdiction  of  the 
United  States,  begins,  or  sets  on  foot,  or  provides  or  prepares  the 
means  for,  any  military  expedition  or  enterprise,  to  be  carried  on 


OFFENSES  AGAINST  NEUTEALITY  267 

from  thence  against  the  territory  or  dominions  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people,  with  whom 
the  United  States  are  at  peace,  shall  be  fined  not  more  than  three 
thousand  dollars  and  imprisoned  not  more  than  three  years. " 

In  the  language  of  Judge  Bradford,  as  cited  in  United  States 
vs.  Murphy.  84  Federal.  609.  the  broad  purpose  of  Section  5286 
of  the  United  States  Revised  Statutes  is  to  prevent  complications 
between  this  Government  and  foreign  powers.    It  is  not  the  intent 
of  that  section  in  any  manner  to  check  or  interfere  with  the 
commercial  activities  of  citizens  of  the  United  States,  or  of  others 
residing  within  the  United  States  and  interested  in  commercial 
transactions;  but  to  prevent  the  use  of  the  soil  or  waters  of  the 
United  States  as  a  base  from  which  military  expeditions  or  mili- 
tary enterprises  shall  be  carried  on  against  foreign  powers  with 
which  the  United  States  is  at  peace.    And  under  the  authority  of 
that  case,  the  providing  of  the  means  of  transportation  of  a  mili- 
tary enterprise  to  be  carried  on  from  the  United  States  against 
the  Spanish  rule  in  Cuba,  was,  within  the  meaning  of  that  section, 
a  preparing  of  the  means  for  such  military  enterprise,  to  be  so 
carried  on ;  and  if  done  with  knowledge  on  the  part  of  the  person 
so  providing  the  means  of  transportation,  of  the  character  and 
purpose  of  such  enterprise,  the  same  is  denounced  by  the  statute. 
In  Wibord  vs.  United  States,  163  U.  S.,  632,  the  Supreme 
Court  held  that  a  hostile  expedition  dispatched  from  the  ports  of 
the  United  States,  is  within  the  words  ' '  carried  on  from  thence. ' ' 
Under  the  authority  of  Hart  vs.  United  States,  84  Federal,  799, 
the  question  as  to  whether  the  men  and  munitions  of  war,  for 
which  the  accused  furnished  transportation,  constituted  a  "mili- 
tary expedition"  in  the  meaning  of  the  statute,  or  the  men  were 
traveling  as  individuals,  without  organization  or  concert  of  ac- 
tion, and  the  arms  and  munitions  were  carried  as  articles  of  legit- 
imate commerce,  and  whether  the  accused  had  guilty  knowledge 
of  the   facts   constituting  the   military   expedition    (if   it   were 
such),  are  all  questions  for  the  .jury,  under  proper  instructions. 

The  words  in  the  statute,  "begins,  or  sets  on  foot,"  are  con- 
strued to  mean,  in  charge  to  grand  jury,  1838  Second  McLain. 
U.  S..  1 ;  30  Federal  Case  No.  18265,  the  making  of  preparations 
which  showed  an  intent  to  set  such  an  expedition  on  foot ;  as,  for 


268  OFFENSES  AGAINST  NEUTRALITY 

instance,  the  contribution  of  money,  clothing  for  troops,  provis- 
ions, arms,  or  any  other  contribution  wliieh  shall  tend  to  forward 
the  expedition  or  to  add  to  the  comfort  or  maintenance  of  those 
who  are  engaged  in  it. 

District  Judge  Brown,  in  United  States  vs.  Nunez  et  al,  82 
Federal,  599,  uses  the  following  language : 

"What  constitutes  a  military  expedition?  What  are  some  of 
the  features  that  mark  a  military  enterprise  or  expedition  as  dif- 
ferent from  a  peaceable  transportation  of  passengers,  arms,  am- 
mimition,  or  goods.  The  essential  features  of  military  operations 
are  evident  enough.  They  are  concert  of  action,  imity  of  action 
by  a  body  organized  and  acting  together,  acting  by  means  of  wea- 
pons of  some  kind,  acting  under  command,  leadership :  these  are 
the  three  most  essential  elements  of  military  action." 

The  Court  held  in  United  States  vs.  O 'Sullivan,  27  Federal 
Cases  No.  15975,  that  it  is  not  essential  to  the  case  that  the  ex- 
pedition should  start,  nuich  less  that  it  should  have  been  accom- 
plished. To  "begin"  is  not  to  finish;  to  "set  on  foot"  is  not  to 
accomplish;  to  provide  a  powder,  is  not  to  put  to  it  the  match 
or  the  percussion.  It  is  not  necessary  that  the  vessel  should  ac- 
tually sail,  nor  is  it  necessary  that  w'ar  should  exist  between  the 
nation  on  which  the  descent  is  to  be  made  with  another  nation. 

District  Judge  Brawley,  in  United  States  vs.  Hughes,  70  Fed- 
eral, 972,  held  upon  preliminary  examination  that  testimony 
which  showed  that  the  steamship  of  which  the  defendant  was  cap- 
tain, after  leaving  the  port  of  New  York  and  passing  outside  of 
Sandy  Hook,  stopped  two  or  three  miles  from  shore ;  that  two 
tugs  approached  and  put  on  board  thirty-five  men  with  several 
boxes  and  three  boats ;  that  the  boxes  were  opened  and  guns  and 
arms  were  taken  out ;  that  during  the  voyage  the  men  so  taken 
on  board  were  constantly  drilled;  that  the  men  spoke  Spanish, 
and  some  of  them  said  they  were  going  to  Cuba  to  fight;  that 
when  the  steamer  approached  the  coast  of  Cuba  at  night,  the 
lights  were  extinguished  and  that  the  men  disembarked  there, 
taking  their  arms  with  them,  using  their  own  three  boats  and 
one  lent  by  the  steamer,  was  sufficient  to  raise  probable  cause  to 
believe  that  the  captain  had  violated  the  statute. 

The  necessary  ingredients  of  the  offense  denounced  by  this 


OFFENSES  AGAINST  NEUTRALITY  269 

statute  are  plainly  set  out  in  charges  to  the  grand  jury,  3  Mc- 
Lean, 306,  30  Federal  Case,  18267. 

Other  cases  bearing  upon  different  phases,  and  illustrating  the 
construction  of  the  statute  with  reference  to  such  phases  by  the 
Court,  are  the  following:  U.  S.  vs.  Pirates,  5  Wheat.,  184;  U.  S. 
vs.  Hallock,  154  U.  S.,  537 ;  Duvall  vs.  U.  S.,  154  U.  S.,  548 ;  the 
''Chapman,"  4  Saw.,  501;  the  " Carondelet, "  37  Federal,  799; 
City  of  Mexico,  32  Federal,  105;  U.  S.  vs.  the  "Resolute,"  40 
Federal,  543;  U.  S.  vs.  the  "Robert"  and  "Minnie,"  47  Federal, 
84;  U.  S.  vs.  Trumbull,  48  Federal,  99;  the  "Itata,"  46  Federal, 
646 ;  U.  S.  vs.  Ybanez,  53  Federal,  536 ;  Hendricks  vs.  Gonzales, 
67  Federal,  351;  U.  S.  vs.  Pena,  69  Federal,  983;  U.  S.  vs. 
O'Brien,  75  Federal,  900.  The  Supreme  Court,  in  United  States 
vs.  Quincey,  6  Peters,  445,  gives  the  substance  of  the  form  of  an 
indictment.  This  was  a  case  for  the  fitting  out  of  a  foreign  vessel 
in  an  American  port. 

§  241.  Enforcement  of  Foregoing  Provisions. — Section  5287  of 
the  1878  Statutes  becomes  Section  14  of  the  New  Code,  in  the  fol- 
lowing words : 

' '  Sec.  14.  The  district  courts  shall  take  cognizance  of  all  com- 
plaints, by  whomsoever  instituted,  in  cases  of  capture  made  with- 
in the  waters  of  the  United  States,  or  within  a  marine  league  of 
the  coasts  or  shores  thereof.  In  every  case  in  which  a  vessel  is 
fitted  out  and  armed,  or  attempted  to  be  fitted  out  and  armed,  or 
in  which  the  force  of  any  vessel  of  war,  cruiser,  or  other  armed 
vessel  is  increased  or  augmented,  or  in  which  any  military  expe- 
dition or  enterprise  is  begun  or  set  on  foot,  contrary  to  the  pro- 
visions and  prohibitions  of  this  chapter;  and  in  every  case  of  the 
capture  of  a  vessel  within  the  jurisdiction  or  protection  of  the 
United  States  as  before  defined ;  and  in  every  case  in  which  any 
process  issuing  out  of  any  court  of  the  United  States  is  disobeyed 
or  resisted  by  any  person  having  the  custody  of  any  vessel  of  war, 
cruiser,  or  other  armed  vessel  of  any  foreign  prince  or  state,  or 
of  any  colony,  district,  or  people,  or  of  any  subjects  or  citizens  of 
any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people,  it 
shall  be  lawful  for  the  President,  or  such  other  person  as  he  shall 
have  empowered  for  that  purpose,  to  employ  such  part  of  the 
land  or  naval  forces  of  the  United  States,  or  of  the  militia  thereof, 
for  the  purpose  of  taking  possession  of  and  detaining  any  such 
vessel,  with  her  prizes,  if  any,  in  order  to  enforce  the  execution 
of  the  prohibitions  and  penalties  of  this  chapter,  and  the  restoring 


270  OFFENSES  AGAINST  NEUTRALITY 

of  such  prizes  in  the  cases  in  which  restoration  shall  be  adjudged ; 
and  also  for  the  purpose  of  preventing  the  carrying  on  of  any- 
such  expedition  or  enterprise  from  the  territory  or  jurisdiction  of 
the  United  States  against  the  territory  or  dominion  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people  with  whom 
the  United  States  are  at  peace. ' ' 

In  Gelston  vs.  Hoyt.  3  Wheat.,  246.  the  Supreme  Court,  deliv- 
ering its  opinion  through  Mr.  Justice  Storey,  held  that  a  plea,  to 
justify  a  seizure  and  detention  under  this  statute  as  it  was  orig- 
inally, which  is  the  soul  of  the  present  statute,  must  aver  that 
the  naval  or  military  force  of  the  United  States  was  employed  for 
that  purpose,  and  that  the  seizor  belonged  to  the  force  so  em- 
ployed. The  Court  also  held  that  the  Act  was  not  to  be  resorted 
to,  except  in  cases  where  a  seizure  or  detention  could  not  be  en- 
forced by  the  ordinary  civil  power.  See  also  Stoughton  vs.  Dim- 
ick,  3  Blatchf.,  356.  The  Attorney  General,  in  17  Opinions  of 
Attorneys  General,  242,  held  that  the  authority  given  by  this  sec- 
tion may  be  exercised  when  there  is  an  organized  armed  body  of 
men  who  intend  to  invade  the  territory  of  a  people  with  whom  the 
United  States  are  at  peace,  when  the  object  of  such  invasion  is 
plunder. 

§  242.  Compelling  Foreign  Vessels  to  Depart. — Old  Section  5288 
becomes  new  Section  15,  which  is  as  follows: 

"Sec.  15.  It  shall  be  lawful  for  the  President,  or  such  person 
as  he  shall  empower  for  that  purpose,  to  employ  such  part  of  the 
land  or  naval  forces  of  the  United  States,  or  of  the  militia  thereof, 
as  shall  be  necessary  to  compel  any  foreign  vessel  to  depart  the 
United  States  in  all  cases  in  which,  by  the  laws  of  nations  or  the 
treaties  of  the  United  States,  she  ought  not  to  remain  within  the 
United  States." 

§  243.  Armed  Vessels  to  Give  Bond  on  Clearance. — Section  5289 
of  the  old  statutes  is  re-enacted  into  Section  16  of  the  New  Code, 
as  follows : 

"Sec.  16.  The  owners  or  consignees  of  every  armed  vessel 
sailing  out  of  the  ports  of,  or  under  the  jurisdiction  of,  the  United 
States,  belonging  wholly  or  in  part  to  citizens  thereof,  shall,  be- 
fore clearing  out  the  same,  give  bond  to  the  United  States,  with 
sufficient  sureties,  in  double  the  amount  of  the  value  of  the  vessel 
and  cargo  on  board,  including  her  armament,  conditioned  that  the 
vessel  shall  not  be  emplo.yed  by  such  owners  to  cruise  or  commit 
hostilities  against  the  subjects,  citizens,  or  property  of  any  for- 


\ 


OFFENSES  AGAINST  NEUTRALITY  271 

eign  prince  or  state,  or  of  any  colony,  district,  or  people  with 
whom  the  United  States  are  at  peace. '' 

The  Supreme  Court,  in  I^'^nited  States  vs.  Quincey.  6  Peters, 
445,  8  Law  Ed.,  458,  held  that  the  statute  did  not  prohibit  armed 
vessels  belonging  to  citizens  of  the  United  States  from  sailing  out 
of  our  ports.  It  only  requires  the  owTiers  to  give  security  that 
such  vessels  shall  not  be  employed  by  them  to  commit  hostilities 
against  foreign  powers  at  peace  with  the  United  States. 

§  244.  Detention  by  Collector  of  Customs. — Section  5290  of  the 
old  statutes  becomes  Section  17  of  the  New  Code,  and  is  as  fol- 
lows : 

"Sec.  17.  The  several  collectors  of  the  customs  shall  detain 
any  vessel  manifestly  built  for  Avarlike  purposes,  and  about  to  de- 
part the  United  States,  or  any  place  subject  to  the  jurisdiction 
thereof,  the  cargo  of  which  principally  consists  of  arms  and  muni- 
tions of  war,  when  the  number  of  men  shipped  on  board,  or  other 
circumstances,  render  it  probable  that  such  vessel  is  intended  to 
be  employed  by  the  owners  to  cruise  or  commit  hostilities  upon 
the  subjects,  citizens,  or  property  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  people  with  whom  the  United  States 
are  at  peace,  until  the  decision  of  the  President  is  had  thereon, 
or  until  the  owner  gives  such  bond  and  security  as  is  required  of 
the  owners  of  armed  vessels  by  the  preceding  section. ' ' 

In  United  States  vs.  Quincey,  6  Peters.  445,  Law  Ed.,  8,  458, 
the  Supreme  Court  held  that  Collectors  are  not  authorized  to  de- 
tain vessels,  although  manifestly  built  for  warlike  purposes,  and 
about  to  depart  from  the  United  States,  unless  circumstances  shall 
render  it  probable  that  such  vessels  are  intended  to  be  employed 
by  the  owTiers  to  commit  hostilities  against  some  foreign  power  at 
peace  with  the  United  States.  All  the  latitude,  therefore,  neces- 
sary for  commercial  purposes,  is  given  to  our  citizens  and  they 
are  restrained  only  from  such  acts  as  are  calculated  to  involve  the 
country  in  war. 

In  Hendricks  vs.  Gonzales.  67  Federal,  351,  the  Circuit  Court 
of  Appeals  for  the  Second  Circuit  used  this  language  : 

"It  is  not  an  infraction  of  the  international  obligation,  to  per- 
mit an  armed  vessel  to  sail,  or  munitions  of  war  to  be  sent,  from 
a  neutral  country  to  a  belligerent  port  for  sale  as  articles  of  com- 
merce ;  and  neutrals  may  lawfully  sell  at  home  to  a  belligerent 
purchaser,  or  carry  themselves  to  the  belligerents,  articles  which 


272  OFFENSES  AGAINST  NEUTRALITY 

are  contraband  of  war.  It  is  the  right  of  the  other  belligerent 
power  to  seize  and  capture  such  property  in  transit;  but  the 
right  of  the  neutral  state  to  sell  and  transport,  and  of  the  hostile 
power  to  seize,  are  conflicting  rights,  and  neither  can  impute 
misconduct  to  the  other.  The  penalty  which  affects  contraband 
merchandise  is  not  extended  to  the  vessel  which  carries  it,  un- 
less ship  and  cargo  belong  to  the  same  owner,  or  the  owner  of  the 
ship  is  privy  to  the  contraband  carriage ;  and  ordinarily  the  pun- 
ishment of  the  ship  is  satisfied  by  visiting  upon  her  the  loss  of 
time  and  freight  and  expenses  which  she  incurs  in  consequence 
of  her  complicity.  On  the  other  hand,  it  is  the  duty  of  every 
Government  to  prevent  the  fitting  out,  arming,  or  equipping  of 
vessels  which  it  has  reasonable  ground  to  believe  are  intended  to 
engage  in  naval  warfare  with  a  power  with  which  it  is  at  peace. ' ' 

§  245.  Construction  of  this  Chapter. — Section  5291  of  the  old 
Revised  Statutes  becomes  Section  18  of  the  New  Code,  in  the  fol- 
lowing words : 

"Sec.  18.  The  provisions  of  this  chapter  shall  not  be  construed 
to  extend  to  any  subject  or  citizen  of  any  foreign  prince,  state, 
colony,  district,  or  people  who  is  transiently  within  the  United 
States  and  enlists  or  enters  himself  on  board  of  any  vessel  of  war, 
letter  of  marque,  or  privateer,  which  at  the  time  of  its  arrival 
within  the  United  States  was  fitted  and  equipped  as  such,  or 
hires  or  retains  another  subject  or  citizen  of  the  same  foreign 
prince,  state,  colony,  district,  or  people  who  is  transiently  within 
the  United  States  to  enlist  or  enter  himself  to  serve  such  foreign 
prince,  state,  colony,  district  or  people  on  board  such  vessel  of 
war,  letter  of  marque,  or  privateer,  if  the  United  States  shall  then 
be  at  peace  with  such  foreign  prince,  state,  colony,  district,  or 
people.  Nor  shall  they  be  construed  to  prevent  the  prosecution  or 
pimishment  of  treason,  or  of  any  piracy  defined  by  the  laws  of 
the  United  States. ' ' 


CHAPTER  X. 

OFFENSES  AGAINST  THE  ELECTIVE  FRANCHISE  AND 
CIVIL  RIGHTS  OF  CITIZENS. 

§  246.     System  of  Government,  Etc.,  Generally. 

247.  Conspiracy    to    Injure,    Etc.,    Citizens    in    the    Exercise    of    Civil 

Eights:   5508—19. 

248.  Eight  to  Labor  Under  Above  Section. 

249.  Other  Illustrations  Under  Above  Section. 

250.  Other  Crimes  Committed  While  Violating  the  Preceding  Section* 

5509. 

251.  Depriving  Persons   of    Civil   Eights   Under   Color   of   State   Law: 

5510—20. 

252.  Consipracy  to  Prevent  Persons  from  Holding  Office,  or  Officer  from 

Performing  His  Duty  Under  United  States,  Etc.:  5518 — 21. 

253.  Unlawful  Presence  of  Troops  at  Election:   5528—22. 

254.  Intimidation    of    Voters   by    Officers,    Etc.,    of    Army    and    Navy: 

5529—23. 

255.  Officers  of   Army   or   Navy   Prescribing   Qualifications   of   Voters: 

5530—24. 

256.  Officers,  Etc.,  of  Army  or  Navy  Interfering  with  Officers  of  Elec- 

tion, Etc.:   5531—25. 

257.  Persons    Disqualified    from    Holding    Office;    When    Soldiers    may 

Vote:   5532—26. 

§  246.  Our  system  of  government,  being  dual  in  its  nature, 
brings  to  the  native  or  naturalized  individual  who  maintains  his 
citizenship  in  this  country,  two  protections,  each  of  which  is,  how- 
ever, distinct  from  the  other,  and  jealous  of  its  particular  terri- 
tory and  jurisdiction.  The  State  has  certain  duties  which  it  must 
fulfill  toward  its  citizens,  to  the  complete  and  satisfactory  meeting 
of  which  the  Federal  Government  stands  as  sponsor  and  guaran- 
tor. On  the  other  hand,  the  Federal  Government  must  exercise 
its  superior  power  with  extreme  care,  lest  it  encroach  upon  the 
rights  and  sovereignties  of  the  respective  States.  There  are  also 
some  Federal  citizenship  rights,  but  they  are  few  in  comparison  to 
State  citizenship  rights.    While  the  Federal  Government  has  au- 

273 


274  RIGHTS   OF   CITIZENS 

thority,  under  the  Federal  Constitution,  and  particularly  under 
Amendments  Six,  Thirteen,  and  Fourteen  to  that  instrument,  to 
enforce  certain  private  rights  for  the  inidvidual  at  the  hands  of 
the  State,  the  vast  majority  of  individual  rights  are  to  be  en- 
forced by  the  State  Governments. 

Among  the  rights  and  privileges  which  have  been  recognized 
by  the  Courts  as  being  secured  to  the  citizens  of  the  United  States 
by  the  Constitution,  are  the  right  to  petition  Congress  for  a  re- 
dress of  grievances ;  the  right  to  vote  for  Presidential  Electors  or 
Members  of  Congress ;  and  the  right  of  every  judicial  and  execu- 
tive officer,  or  every  person  engaged  in  the  service  or  kept  in  the 
custody  of  the  United  States  in  the  course  of  the  administration 
of  justice,  to  be  protected  from  lawless  violence.  There  is  a 
peace  of  the  United  States.  These  Federal  rights  have  been  an- 
nounced by  the  Supreme  Court  in  their  order  as  above  stated,  in 
the  following  cases:  United  States  vs.  Cruikshank,  92  U.  S.,  542, 
23  Law  Ed.,  588 ;  ex  parte  Yarbrough,  110  U.  S.,  651,  28  Law  Ed., 
274;  in  re  Neagle,  135  U.  S.,  1,  34  Law  Ed.,  55;  U.  S.  vs.  Logan, 
12  Supreme  Court,  617,  36  Law  Ed.,  429. 

These  Supreme  Court  discovered  rights  have  been  somewhat 
added  to  by  later  cases,  that  will  be  noticed  in  the  discussion 
under  old  Section  5508,  which  becomes  new  Section  19. 

Difficult,  indeed,  it  is  to  invariably  trace  the  line  between  the 
authorities  and  limitations  of  the  two  sovereignties ;  and  this  dif- 
ficulty is  somewhat  increased  by  the  desire  to  see  that  a  wronged 
individual  secures  his  rights,  regardless  of  setting  precedent  or 
the  overriding  of  limitations  that  must,  for  the  perpetuity  of  our 
republic,  be  observed. 

§  247.  Conspiracy  to  Injure,  Etc.,  Citizens  in  the  Exercise  of 
Civil  Rights. — Section  5508  of  the  1878  Revised  Statutes  becomes 
Section  19  of  the  New  Code,  in  the  following  words: 

"Sec.  19.  If  two  or  more  persons  conspire  to  injure,  oppress, 
threaten,  or  intimidate  any  citizen  in  the  free  exercise  or  enjoy- 
ment of  any  right  or  privilege  secured  to  him  by  the  Constitution 
or  laws  of  the  LTnited  States,  or  because  of  his  having  so  exercised 
the  same,  or  if  two  or  more  persons  go  in  disguise  on  the  highway, 
or  on  the  premises  of  another,  with  intent  to  prevent  or  hinder 
his  free  exercise  or  enjoyment  of  any  right  or  privilege  so  se- 


RIGHTS   OF   CITIZENS  275 

cured,  they  shall  be  fined  not  more  than  five  thousand  dollars  and 
imprisoned  not  more  than  ten  years,  and  shall,  moreover,  be  there- 
after ineligible  to  any  office,  or  place  of  honor,  profit,  or  trust 
created  by  the  Constitution  or  laws  of  the  United  States." 

Bearing  in  mind  the  two  sorts  of  rights  that  each  individual 
citizen  in  this  country  is  supposed  to  enjoy,  namely,  those  original 
rights  which  he  has  as  a  citizen  of  the  United  States  and  those 
which  he  has  as  a  citizen  of  the  State  in  which  he  resides,  it  will 
be  at  once  understood  that  the  foregoing  section  can  only  relate 
to  and  protect  such  rights  as  are  guaranteed  to  the  citizen  of  the 
United  States ;  that  is,  to  the  rights  pertaining  to  citizens  as  cit- 
izens of  the  United  States.  The  easiest  way  for  us  to  find  the  line 
as  blazed  by  the  Courts,  is  to  review  some  of  the  decisions. 

In  United  States  vs.  Eberhart,  127  Federal.  254,  District  Judge 
Newman  held  that  an  indictment  which  charged  the  .defendants 
with  conspiring,  etc.,  to  intimidate  B.,  a  citizen  of  the  United 
States,  in  the  free  exercise  of  his  privilege  to  contract  and  being 
contracted  with,  his  right  of  personal  security  and  personal  lib- 
erty, and  the  overt  act  charged  was  the  seizing  of  B.,  the  placing 
of  handcuffs  on  him  and  compelling  him,  by  force  and  against  his 
will,  to  enter  into  a  pretended  contract  to  work  for  a  long  period 
of  time,  stated  no  Federal  offense ;  because  the  citizen 's  right  to 
personal  liberty  and  security  was  within  the  primary  jurisdiction 
of  the  State. 

In  McKenna  vs.  United  States,  127  Federal,  page  88,  the  Cir- 
cuit Court  of  Appeals  for  the  Sixth  Circuit  held  that  an  indict- 
ment under  this  section,  which  charged  that  the  defendants  con- 
spired to  injure,  etc.,  certain  male  citizens  of  Kentucky  in  the 
free  exercise  and  enjoyment  of  a  right  and  privilege  secured  to 
them,  was  bad,  as  indefinite,  in  that  it  failed  to  state  what  partic- 
ular right  and  privilege  it  meant.  The  opinion,  in  discussing  the 
demurrer,  leaves  us  under  the  impression  that  the  prosecution 
would  have  sustained,  (it  being  for  a  conspiracy  to  prevent  cer- 
tain persons  from  voting) ,  had  the  indictment  been  sufficient. 

The  Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  in 
Haynes  vs.  United  States,  101  Federal,  page  819,  held  in  sub- 
stance, that  an  indictment  against  certain  persons  for  conspiring 


276  RIGHTS   OF   CITIZENS 

to  prevent  a  citizen  of  the  United  States  from  the  free  exercise 
and  enjoyment  of  a  certain  right  and  privilege  secured  to  him  by 
the  laws  of  the  United  States,  (that  is  to  say,  the  right  to  then 
and  there  peaceably  enter  upon,  prospect  for  minerals,  initiate, 
locate,  establish,  and  perfect  a  mining  claim  upon  the  public  lands 
of  the  United  States  under  the  public  land  of  the  United  States, 
etc.),  was  good,  and  that  a  prosecution  therefor  could  be  sus- 
tained under  this  section. 

In  Davis  vs.  United  States,  107  Federal,  753,  the  Circuit  Court 
of  Appeals  for  the  Sixth  Circuit  affirmed  a  conviction  had  upon 
an  indictment  charging  a  conspiracy  under  this  section  to  prevent 
the  arrest  of  certain  parties  who  were  sought  by  the  United  States 
Deputy  Marshals  for  alleged  violations  of  the  Federal  Revenue 
Laws,  the  overt  act  charged  therein  being  the  murder  of  one  of 
the  Federal  officials. 

In  Karem  vs.  United  States,  121  Federal,  250,  the  Circuit  Court 
of  Appeals  for  the  Fifth  Circuit,  in  a  prosecution  under  this  sec- 
tion, held  that  the  power  of  Congress  to  legislate  on  the  subject 
of  voting  at  purely  State  elections,  is  entirely  dependent  upon  the 
Fifteenth  Constitutional  Amendment,  and  is  limited  by  such 
amendment  to  the  enactment  of  appropriate  legislation  to  pre- 
vent the  right  of  a  citizen  of  the  United  States  to  vote,  from  being 
denied  or  abridged  by  a  State,  on  account  of  race,  color,  or  con- 
dition ;  and  since  the  amendment  is  in  terms  addressed  to  action 
by  the  United  States  or  a  State,  appropriate  legislation  for  its  en- 
forcement must  also  be  addressed  to  State  action,  and  not  to  the 
action  of  individuals.  In  that  case,  the  Court  held,  in  substance, 
that  a  penal  act  of  Congress  cannot  be  sustained,  as  an  exercise  of 
the  power  given  by  a  Constitutional  provision,  to  enact  appropri- 
ate legislation  for  its  enforcement,  where  the  Act  is  broader  in  its 
terms  than  the  Constitutional  provision,  and  the  language  used 
covers  wrongful  acts  without,  as  well  as  within,  the  same.  In 
that  particular  case,  the  defendant  had  been  convicted  under  an 
indictment  framed  imder  this  section,  which  charged  in  substance 
that  he  and  others  had  conspired,  etc.,  to  intimidate  certain  per- 
sons of  color,  who  were  citizens  of  the  United  States  and  of  the 
State  of  Kentucky,  qualified  voters,  etc.,  from  exercising  a  right 


RIGHTS   OF   CITIZENS  277 

and  privilege  secured  to  them  by  the  Constitution  and  laws  of 
the  United  States,  to  wit,  the  right  and  privilege  to  vote  at  the 
election  (setting  out  the  election,  etc.),  such  election  being  for 
State  and  municipal  officers  of  Kentucky  only.  The  defendants 
were  convicted.  The  contention  of  the  Government  before  the 
Circuit  Court  of  Appeals  was,  that  Sections  200-i  and  5508  of  the 
old  Statutes,  guaranteed  the  individual  the  right  to  vote  at  a 
State  election,  and  that  the  Federal  Government  protected  him 
in  his  right,  even  against  the  acts  of  individuals.  The  Fifteenth 
Amendment  to  the  Constitution  reads  as  follows: 

"Section  1.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States,  or  by  any 
State,  on  account  of  race,  color,  or  previous  condition  of  servitude. 

' '  Section  2.  The  Congress  shall  have  the  power  to  enforce  this 
Article  by  appropriate  legislation." 

The  Courts  had;  already  decided  that  this  Constitutional 
Amendment  did  not  confer  the  right  of  suffrage  upon  anyone, 
United  States  vs.  Reeves,  92  U.  S.,  214,  23  Law  Ed.,  563 ;  United 
States  vs.  Cruikshank,  92  U.  S.,  542,  23  Law  Ed.,  588.  The  right 
to  vote  is  conferred  by  the  State  laws.  The  Amendment,  there- 
fore, merely  guaranteed  that  no  State  should  interfere  with  the 
right  to  vote,  by  legislation  based  upon  a  distinction  as  to  race, 
color,  or  previous  condition  of  servitude.  "State  action,  there- 
fore, and  not  individual  action,"  said  the  Court,  "is  the  subject 
of  this  Article.  The  right  to  vote  is  purely  State  elections  being, 
as  we  have  seen,  a  right  granted  by,  and  dependent  upon,  the  law 
of  the  State,  is,  therefore,  a  right  w'hich  can  only  be  denied  or 
abridged  by  the  State.     The  Amendment  is,  therefore,  in  terms 

addressed  to  State  action With  the  exception  of  the  first 

clause  of  the  first  section  of  the  Fourteenth  Amendment,  that 
section  is,  like  the  Fifteenth  Amendment,  addressed  broadly  to 
the  State.    The  other  clauses  of  that  Section,  reading  as  follows : 

"No  State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United  States ;  nor 
shall  any  State  deprive  anj^  person  of  life,  liberty,  or  property, 
\nthout  due  process  of  law;  nor  deny  to  any  person,  within  its 
jurisdiction,  the  equal  protection  of  the  laws," 

have  been  authoritatively  construed  as  addressed  to  State  action 


278  RIGHTS   OF   CITIZENS 

in  some  form,  and  not  to  mere  individual  conduct.  The  Slaughter 
house  case,  10  Wallace,  36,  21  Law  Ed.,  394;  ex  parte  Virginia, 
100  U.  S.,  339,  25  Law  Ed.,  676,  the  Cruikshank  case,  cited  supra; 
United  States  vs.  Harris,  106  U.  S.,  629,  27  Law  Ed.,  290;  Vir- 
ginia vs.  Rives,  100  U.  S.,  313,  25  Law  Ed.,  667 ;  Civil  Rights  case, 
109  U.  S.,  3,  37  Law  Ed.,  835;  Chicago,  etc.  Railroad  vs.  Chi- 
cago, 166  U.  S.,  226,  41  Law  Ed.,  979. "  Of  course,  if  the  individ- 
ual acts  as  an  instrument  or  agency  of  the  State,  and  presumes  to 
act  by  the  authority  of  the  State,  then  this  section  would  be  oper- 
ative. Same  authorities.  And  the  Court  reversed  the  conviction, 
and  sustained  the  demurrer. 

§  248.  Right  to  Labor. — District  Judge  Trieber,  in  United 
States  vs.  Morris,  125  Federal,  322,  in  overruling  a  demurrer  to 
an  indictment,  found  under  this  section,  which  charged  a  con- 
spiracy, etc.,  to  prevent  negro  citizens  from  exercising  the  right 
to  lease  and  cultivate  land,  because  they  were  negroes,  etc.,  held 
that  Congress  has  the  power,  under  the  Thirteenth  Constitutional 
Amendment,  to  protect  citizens  of  the  United  States  in  the  en- 
joyment of  those  rights  which  are  fundamental  and  belong  to 
every  citizen,  if  the  depredation  of  those  rights  is  solely  because 
of  race  or  color.  In  his  opinion,  Judge  Trieber  follows  the  dis- 
tinction made  by  Justice  Bradley  in  the  Civil  Rights  Cases,  109 
U.  S.,  3,  27  Law  Ed.,  835,  in  considering  the  Thirteenth,  Four- 
teenth, and  Fifteenth  Amendments  to  the  Constitution.  By  the 
wording  of  the  Fourteenth  and  Fifteenth  Amendments,  en- 
croachments by  State  authority  alone  are  mentioned;  but  the 
Thirteenth  Amendment  includes  everybody  within  the  jurisdic- 
tion of  the  national  Government.  That  Amendment  provides  that 
neither  slavery  nor  involuntary  servitude,  except  as  a  punish- 
ment for  crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  subject  to  their 
jurisdiction.  The  abolition  of  slavery,  said  Mr.  Justice  Field  in 
the  Slaughter-house  case,  and  involuntary  servitude,  was  intend- 
ed to  make  everyone  born  in  this  country  a  free  man ;  and  as  such, 
to  give  him  the  right  to  pursue  the  ordinary  avocations  of  life, 
without  other  restraint  than  such  as  affects  all  others,  and  to 
enjoy  equally  with  them  the  fruits  of  his  labor.  All  the  right  to 
lease  land,  said  Judge  Trieber,  and  to  accept  employment  as  a 


EIGHTS   OF   CITIZENS  279 

laborer  for  hire,  are  fundamental  rights,  inherent  in  every  free 
citizen,  and  a  conspiracy  to  prevent  the  negro  from  exercising 
these  rights,  because  he  is  a  negro,  is  a  conspiracy  to  deprive  him 
of  the  privilege  secured  by  the  Constitution  and  laws  of  the  Uni- 
ted States,  within  the  meaning  of  Section  5508. 

The  Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  in  Smith 
vs.  United  States,  157  Federal,  721,  affirmed  a  judgment  of  con- 
viction had  upon  an  indictment  found  under  the  section  now 
being  considered,  for  conspiring,  etc.,  to  effect,  by  arresting,  im- 
prisoning, guarding,  and  compelling  by  threats  and  intimidation, 
a  certain  negro  to  work  against  his  will.  This  prosecution  was 
also  predicated  upon  the  Thirteenth  Constitutional  Amendment. 
The  evidence  in  this  case  showed  that  one  of  the  defendants  went 
to  Memphis,  Tennessee,  and  there  hired  fifteen  or  more  negroes 
to  go  with  him  to  his  place  in  Missouri,  to  work  in  a  mill,  prom- 
ising liberal  wages.  On  their  arrival  in  the  night,  they  were  met 
at  the  station  by  another  of  the  defendants  with  hacks  and  taken 
to  a  farm  twelve  miles  distant,  where  they  were  searched  for  wea- 
pons, and  then  placed  in  a  cabin  under  the  guard  of  others,  armed 
with  repeating  rifles  and  revolvers.  They  were  kept  under  such 
guards  night  and  day,  and  worked  on  the  farm  in  clearing  and 
ditching,  few,  if  any,  receiving  the  promised  wage.  All  of  the  de- 
fendants were  convicted. 

§  249.  Other  Illustratioiis.— In  United  States  vs.  Davis,  103 
Federal,  458.  Judge  Hammond  overruled  a  motion  for  new  trial, 
and  assessed  the  full  penalty  of  the  statute  against  a  defendant 
who  was  indicted  for  violating  this  section,  the  specific  conspiracy 
being  to  injure  and  intimidate,  etc.,  a  United  States  Marshal  and 
his  posse,  and  to  deprive  them  of  their  Constitutional  right  to  ar- 
rest him  on  legal  process;  as  a  result  of  which  consipracy  the 
Deputy  Marshal  was  killed. 

The  Supreme  Court  of  the  United  States,  in  United  States  vs. 
Mason,  213  U.  S.,  page  115.  passed  technically  upon  a  similar 
prosecution  against  certain  parties  who  conspired  to  intimidate, 
and  finally  killed,  an  agent  of  the  Department  of  Justice  of  the 
United  States;  upon  the  trial  of  whom  the  defense  was  raised 
that  they  had  been  acquitted  in  the  State  Court  for  murdering 
the  identical  person ;  and  the  Supreme  Court  of  the  United  States, 


280  EIGHTS   OF   CITIZENS 

in  that  case,  says  that  inasmuch  as  the  State  Court  had  acquitted 
for  murder  of  the  identical  person  alleged  as  the  overt  act  for  the 
Federal  crime,  there  could  be  no  Federal  offense.  In  other  words, 
"the  language  of  Section  5509  is  entirely  satisfied,  and  the  ends 
of  justice  met,  if  the  statute  is  construed  as  not  embracing,  nor 
intended  to  embrace,  any  felony  or  misdemeanor  against  the 
State,  of  which,  prior  to  the  trial  in  the  Federal  Court  of  the 
Federal  offense  charged,  the  defendants  had  been  lawfully  ac- 
quitted of  the  alleged  State  offense,  by  a  State  Court  having  full 
jurisdiction  in  the  premises.  This  interpretation  recognizes  the 
power  of  the  State,  by  its  own  tribunals,  to  try  offenses  against  its 
laws,  and  to  acquit  or  punish  the  alleged  offender,  as  the  facts 
may  justify.  This  construction, ' '  continued  that  Court,  ' '  will  not 
prevent  the  trial  of  the  defendants  upon  the  charge  of  conspiracy, 
and  their  punishment,  if  guilty,  according  to  5508 ;  namely,  by  a 
fine  of  not  exceeding  five  thousand  dollars  and  imprisonment  not 
more  than  ten  years.  The  only  result  of  the  views  we  have  ex- 
pressed is  that  in  the  trial  of  this  case  in  the  Federal  Court,  5509 
cannot  be  applied,  because  it  has  been  judicially  ascertained  and 
determined  by  a  tribunal  of  competent  jurisdiction — the  only  one 
that  could  finally  determine  the  question — that  the  defendants 
did  not  murder  Walker.  The  Federal  Court  may,  therefore,  pro- 
ceed as  indicated  in  5508,  without  reference  to  5509." 

Morris  Case,  Hodges  Case,  Riggins  Case,  and  Powell  Case. — We 
have  discussed  above  Judge  Trieber's  opinion  in  125  Federal,  322. 
The  Supreme  Court  of  the  United  States,  in  Hodges  vs.  United 
States,  27  Supreme  Court,  6;  51  Law  Ed.,  page  65;  203  U.  S., 
page  1,  which  was  a  case  from  the  Eastern  District  of  Arkansas, 
where  the  defendants  were  convicted  under  this  section  for  con- 
spiring, etc.,  to  compel  negro  citizens,  by  force  and  intimidation, 
to  desist  from  performing  their  contracts  of  employment,  re- 
versed and  dismissed  the  prosecution ;  the  reasoning  of  the  Court 
being  in  direct  conflict  with  the  reasoning  of  Judge  Trieber  in  the 
Morris  case,  cited  supra.  The  opinion  of  the  Court,  by  Judge 
Brewer,  suggests  that  prior  to  the  post-bellum  Amendments  to  the 
Constitution,  the  national  Government  had  no  jurisdiction  over 
a  wrong  like  that  charged  in  this  indictment.  The  Fourteenth 
and  Fifteenth  Amendments  do  not  justify  the  legislation,  (that 


EIGHTS   OF   CITIZENS  281 

is,  Section  5508 ) ,  for  they,  as  have  been  repeatedly  held,  are  re- 
strictions upon  State  action.  Unless,  therefore,  said  the  Court, 
the  Thirteenth  Amendment  vests  in  the  nation  the  jurisdiction 
claimed,  the  remedy  must  be  sought  through  State  action,  and 
in  State  tribunals,  subject  to  the  supervision  of  this  Court,  by 
writ  of  error,  in  proper  cases.  The  things  denounced  by  the 
Thirteenth  Amendment  are  slavery  and  involuntary  servitude, 
and  Congress  is  given  power  to  enforce  that  denimciation.  While 
the  inciting  cause  of  the  Amendment  was  the  emancipation  of  the 
colored  race,  yet  it  is  not  an  attempt  to  commit  that  race  to  the 
care  of  the  nation.  It  is  the  denunciation  of  the  condition,  and 
not  a  declaration  in  favor  of  a  particular  people.  It  reaches  every 
race  and  every  individual ;  and  if  in  any  respect  it  commits  one 
race  to  the  nation,  it  commits  every  race  and  every  individual 
thereof.  Slavery  or  involuntary  servitude  of  the  Chinese,  of  the 
Italian,  of  the  Anglo  Saxon,  are  as  much  within  its  compass  as 
slavery  or  involuntary  servitude  of  the  African.  It  is  no  answer 
to  say  that  one  of  the  indicia  of  the  existence  of  slavery  is  the 
existence  of  the  disability  to  make  or  perform  contracts.  The 
Court  continues: 

"At  the  close  of  the  Civil  War,  when  the  problem  of  the  eman- 
cipated slaves  was  before  the  nation,  it  might  have  left  them  in 
a  condition  of  aliens ;  or  established  them  as  wards  of  the  Govern- 
ment, like  the  Indian  tribes,  and  thus  retained  jurisdiction  for  the 
nation  over  them;  or  it  might,  as  it  did,  give  them  citizenship. 
It  chose  the  latter.  By  the  Fourteenth  Amendment,  it  made  citi- 
zens of  all  born  within  the  limits  of  the  United  States,  and  sub- 
ject to  its  jurisdiction.  By  the  Fifteenth,  it  prohibited  any  State 
from  denying  the  right  of  suffrage,  on  account  of  color,  race,  or 
previous  condition  of  servitude ;  and  by  the  Thirteenth,  it  forbade 
slavery  or  involuntary  servitude  anywhere  within  the  limits  of 
the  land Congress  gave  them  citizenship,  doubtless  believ- 
ing that  thereby,  in  the  long-run,  their  best  interests  would  be 
subserved,  they  taking  their  chances  with  other  citizens  in  the 
States  where  they  should  make  their  homes.  For  these  reasons, 
we  think  that  the  United  States  Court  had  no  jurisdiction  of  the 
wrong  charged  in  the  indictment." 

District  Judge  Jones,  in  United  States  vs.  Powell,  151  Federal, 
648,  follows  the  Hodges  case,  and  sustained  a  demurrer  to  an 


282  RIGHTS   OF    CITIZENS 

indictment  which  charged  the  defendant,  with  one  Riggins,  ex 
parte  Riggins,  134  Federal,  404;  Riggins  vs.  United  States,  199 
U.  S.,  546,  50  Law  Ed.,  303,  with  conspiring  to  injure,  etc.,  a 
negro  citizen  in  the  enjoyment  of  certain  rights,  to  wit,  by  depriv- 
ing him  of  the  right  of  trial,  etc.,  by  taking  him  from  the  sheriff, 
who  had  him  in  custody,  and  mobbing  him.  Judge  Jones,  in  the 
Riggins  case,  134  Federal,  404,  decided  the  question  on  demurrer 
differently  from  the  way  he  decided  in  the  Powell  case;  but 
between  the  time  of  the  rendition  of  the  Riggins  opinion  and  the 
rendition  of  the  Powell  opinion,  the  Supreme  Court  had  spoken 
in  the  Hodges  case,  cited  supra. 

Voting. — In  United  States  vs.  Lackey,  District  Judge  Evans 
overruled  demurrers  to  an  indictment  which  was  brought  under 
this  section  for  conspiring  to  intimidate  and  prevent  negro  citi- 
zens from  exercising  the  right  to  vote ;  and  he  placed  his  decision 
upon  the  guarantee  of  the  Fifteenth  Amendment. 

Right  to  Inform  of  Violations  of  the  Law. — It  is  the  right  and 
privilege  of  one,  in  return  for  the  protection  enjoyed  under  the 
Constitution  and  laws  of  the  United  States,  to  aid  in  the  execution 
of  the  laws,  by  giving  information  to  the  proper  authorities  of 
violations  of  those  laws.  Conspiracy  to  injure  one  who  had  given 
information  about  violations  of  the  Revenue  Laws,  is  an  offense 
under  this  Section.  1  Federal  Stat.,  803;  Motes  vs.  United 
States,  178  U.  S.,  458;  in  re  Quarrels,  158  U.  S.,  532.  A  con- 
spiracy to  intimidate  a  citizen  of  African  descent  in  the  exercise 
of  his  right  to  vote  for  a  Member  of  Congress  and  in  the  execu- 
tion of  that  conspiracy,  beating  and  maltreating  him,  is  ap  offense 
under  Section  5520.  First  Federal  Statutes  Annotated,  803 ; 
ex  parte  Yarbrough,  110  U.  S.,  651;  U.  S.  vs.  Butler,  1  Hughes, 
457. 

Right  of  One  in  Custody  to  Protection. — The  leading  case  upon 
this  question  is  the  case  of  Logan  vs.  United  States,  144  U.  S.,  263, 
where  it  was  decided  that  a  person  in  the  custody  of  a  United 
States  Marshal,  has  the  right  to  be  protected  against  unlawful  in- 
terference ;  and  the  conspiracy  to  deprive  him  of  such  right  is  an 
offense  under  this  section. 

Other  Cases. — Cases  not  cited  in  the  above  discussion,  but  which 
bear  upon  various  phases  of  the  statute  under  consideration  are 


BIGHTS   OF   CITIZENS  283 

the  following:  Strauder  vs.  West  Virginia,  100  U.  S.,  303;  ex 
parte  Virginia,  100  U.  S.,  339 ;  ex  parte  Siebold,  100  U.  S.,  371 ; 
ex  parte  Clark,  100  U.  S.,  399 ;  Neal  vs.  Delaware,  103  U.  S.,  370; 
United  States  vs.  Harris,  106  U.  S.,  629 ;  Civil  Rights  cases.  109 
U.  S.  17;  Baldwin  vs.  Frank,  120  U.  S.,  678;  in  re  Coy,  127  U. 
S.  731 ;  i)i  re  Neagel,  135  U.  S.,  1 ;  in  re  Lancaster,  137  U.  S., 
393;  Brown  vs.  United  States,  150  U.  S.,  93;  in  re  Quarrels, 
158  U.  S.,  532 ;  Rakes  vs.  U.  S.,  212  U.  S.,  55 ;  Le  Grand  vs.  U.  S., 
12  Federal,  577 ;  in  re  Baldwin,  27  Federal,  187 ;  U.  S.,  vs.  Lan- 
caster, 44  Federal,  885 ;  U.  S.  vs.  Sanges,  48  Federal,  78 ;  U.  S.  vs. 
Patrick,  53  Federal,  356 ;  also  54  Federal,  338. 

It  may,  therefore,  be  stated  with  comparative  satisfaction  and 
confidence  in  the  ability  to  demonstrate  its  correctness  from  the 
above  decisions,  that  the  Federal  Government  has  no  jurisdiction 
to  prosecute  under  these  statutes  for  offenses  which  interfere  with 
the  privileges  and  immimities  of  citizens  of  the  several  States. 
The  difficulty  seems  to  be  to  determine  just  what  are  such  privi- 
leges and  imnumities.  ' '  They  are, ' '  in  the  language  of  Mr.  Jus- 
tice "Washington,  which  is  approved  in  the  Slaughter-house 
Cases,  cited  supra,  ' '  such  privileges  and  immunities  as  are  funda- 
mental ;  which  belong  of  right  to  the  citizens  of  all  free  Govern- 
ments, and  which  have,  at  all  times,  been  enjoyed  by  citizens  of 
the  several  States  which  compose  this  Union,  from  the  time  of 
their  becoming  free,  independent,  and  sovereign.  What  these 
fundamental  principles  are,  it  would  be  more  tedious  than  diffi- 
cult to  enumerate.  They  may  all,  however,  be  comprehended  un- 
der the  following  general  heads:  protection  by  the  Government, 
with  the  right  to  acquire  and  possess  property  of  every  kind,  and 
to  pursue  and  obtain  happiness  and  safety,  subject,  nevertheless, 
to  such  restraints  as  the  Government  may  prescribe  for  the  gen- 
eral good  of  the  whole."  On  the  other  hand,  the  Federal  Gov- 
ernment, under  the  above  statutes,  will  protect  the  person  in  the 
right  to  vote  for  any  Federal  official ;  will  protect  a  person  in  his 
right  to  give  information  of  the  violation  of  Federal  laws;  will 
protect  the  Federal  Government,  and  all  of  its  agencies,  persons, 
and  entire  officialdom ;  will  protect  the  person  of  any  prisoner  that 
may  be  in  the  hands  of  its  officers ;  and  will  protect  its  officers  in 
the  execution  of  any  and  all  of  their  functions ;  and  will,  in  the 


284  EIGHTS   OF   CITIZENS 

enforcement  of  the  Thirteenth  Amendment,  punish  all  sorts  of 
peonage  and  enforced  labor. 

Any  mob,  however,  or  aggregation  of  private  individuals  that 
act  independently  of  a  State  or  Government  that  attacks  the 
negro  race  or  other  races,  commit  no  Federal  offense.  Such  of- 
fenders are  to  be  punished  by  the  laws  of  the  State. 

§  250.  Other  Crimes  Committed  While  Violating  the  Preceding 
Section. — Section  5509  of  the  old  1878  Statutes  reads  as  follows : 

"Sec.  5509.  If  in  the  act  of  violating  any  provision  in  either 
of  the  two  preceding  sections  any  other  felony  or  misdemeanor  be 
committed,  the  offender  shall  be  punished  for  the  same  with  such 
punishment  as  is  attached  to  such  felony  or  misdemeanor  by  the 
laws  of  the  State  in  which  the  offense  is  committed. ' ' 

The  section  does  not  embrace  any  felony  or  misdemeanor 
against  a  State,  of  which,  prior  to  the  trial  in  the  Federal  Court 
of  the  Federal  offense,  the  defendants  had  been  lawfully  acquit- 
tel  by  a  State  Court  having  full  jurisdiction.  As  the  Federal 
Court  accepted  the  judgment  of  a  State  Court,  construing  the 
meaning  and  scope  of  the  State  enactment,  whether  civil  or 
criminal,  it  should  also  accept  the  judgment  of  a  State  Court 
based  on  a  verdict  of  acquittal  of  a  crime  against  the  State.  Uni- 
ted States  vs.  Mason,  213  U.  S.,  115. 

§  251.  Depriving  Persons  of  Civil  Rights  Under  Color  of  State 
Law. — Section  5510  of  the  old  statutes  becomes  Section  20  of  the 
New  Code,  which  is  in  the  following  words: 

"Sec.  20.  Whoever,  under  color  of  any  law,  statute,  ordi- 
nance, regulation,  or  custom,  wilfully  subjects,  or  causes  to  be 
subjected,  any  inhabitant  of  any  State,  Territory,  or  District  to 
the  deprivation  of  any  rights,  privileges,  or  immunities  secured  or 
protected  by  the  Constitution  and  laws  of  the  United  States,  or  to 
different  punishments,  pains,  or  penalties,  on  account  of  such  in- 
habitant being  an  alien,  or  by  reason  of  his  color,  or  race,  than 
are  prescribed  for  the  punishment  of  citizens,  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more  than  one 
year,  or  both. ' ' 

The  Court,  in  charging  the  jury  in  United  States  vs.  Buntin, 
10  Federal,  730,  which  w-as  a  prosecution  under  this  section,  said, 
' '  He,  the  child,  must  have  been  excluded  under  some  color  of  law, 
statute,  ordinance,  regulation,  or  custom  of  the  State,  and  op 
account  of  his  color."  See  also  Civil  Rights  Cases,  109  U.  S.,  16. 


RIGHTS   OF   CITIZENS  285 

§  252.  Conspiracy  to  Prevent  Person  from  Holding  Office  or  Offi- 
cer from  Performing  His  Duty  Under  United  States,  Etc. — Section 
5518  of  the  old  Statutes  becomes  Section  21  of  the  New  Code,  as 
follows : 

"Sec.  21.  If  two  or  more  persons  in  any  State,  Territory,  or 
District  conspire  to  prevent,  by  force,  intimidation,  or  threat,  any 
person  from  accepting  or  holding  any  office,  trust,  or  place  of 
confidence  under  the  United  States,  or  from  discharging  any 
duties  thereof ;  or  to  induce  by  like  means  any  officer  of  the  Uni- 
ted States  to  leave  any  State,  Territory,  District,  or  place,  where 
his  duties  as  an  officer  are  required  to  be  performed,  or  to  injure 
him  in  his  person  or  property  on  account  of  his  lawful  discharge 
of  the  duties  of  his  office,  or  while  engaged  in  the  lawful  dis- 
charge thereof,  or  to  injure  his  property  so  as  to  molest,  interrupt, 
hinder,  or  impede  him  in  the  discharge  of  his  official  duties,  each 
of  such  persons  shall  be  fined  not  more  than  five  thousand  dollars, 
or  imprisoned  not  more  than  six  years,  or  both." 

§  253.  Unlawful  Presence  of  Troops  at  Elections.— Section  22  of 
the  New  Code  takes  the  place  of  old  Section  5528,  and  is  in  the 
following  words : 

' '  Sec.  22.  Every  officer  of  the  Army  or  Navy,  or  other  person 
in  the  civil,  military,  or  naval  service  of  the  United  States,  who 
orders,  brings,  keeps,  or  has  under  his  authority  or  control  any 
troops  or  armed  men  at  any  place  where  a  general  or  special 
election  is  held  in  any  State,  unless  such  force  be  necessary  to 
repel  armed  enemies  of  the  United  States,  shall  be  fined  not  more 
than  five  thousand  dollars  and  imprisoned  not  more  than  five 
years. ' ' 

§  254.  Intimidation  of  Voters  by  Officers,  Etc.,  of  Army  and 
Navy. — Section  23  of  the  New  Code  displaces  old  Section  5529, 
and  is  in  the  following  words : 

"Sec.  23.  Every  officer  or  other  person  in  the  military  or 
naval  service  of  the  United  States  who,  by  force,  threat,  intimida- 
tion, order,  advice,  or  otherwise,  prevents,  or  attempts  to  prevent, 
any  qualified  voter  of  any  State  from  freely  exercising  the  right 
of  suffrage  at  any  general  or  special  election  in  such  State  shall  be 
fined  not  more  than  five  thousand  dollars  and  imprisoned  not 
more  than  five  years. ' ' 

§  255.  Officers  of  Army  or  Navy  Prescribing  Qualifications  of 
Voters. — Section  24  of  the  New  Code  takes  the  place  of  old  Statute 
5530,  and  is  as  follows : 

"Sec.  24.     Every  officer  of  the  Army  or  Navy  who  prescribes 


286  RIGHTS   OF   CITIZENS 

or  fixes,  or  attempts  to  prescribe  or  fix,  whether  by  proclamation, 
order,  or  otherwise,  the  qualifications  of  voters  at  anj'  election  in 
any  State  shall  be  punished  as  provided  in  the  preceding  section." 

§  256.  Officers,  Etc.,  of  Army  or  Navy  Interfering  with  Officers 
of  Election,  Etc. — Section  25  of  the  New  Code  takes  the  place  of 
Section  5531,  and  is  as  follows: 

"Sec.  25.  Every  officer  or  other  person  in  the  military  or  naval 
service  of  the  United  States  who,  by  force,  threat,  intimidation, 
order,  or  otherwise,  compels,  or  attempts  to  compel,  any  oificei* 
holding  an  election  in  any  State  to  receive  a  vote  from  a  person 
not  legally  qualified  to  vote,  or  who  imposes,  or  attempts  to  im- 
pose, any  regulations  for  conducting  any  general  or  special  elec- 
tion in  a  State  different  from  those  prescribed  by  law,  or  who  in- 
terferes in  any  manner  with  any  officer  of  an  electiim  in  the  dis- 
charge of  his  duty,  shall  be  punished  as  provided  in  section 
twenty -three. ' ' 

§  257.  Persons  Disqualified  from  Holding  Office ;  When  Soldiers, 
Etc.,  May  Vote. — Old  Section  5532  becomes  Section  26  of  the  Xew 
Code,  as  follows : 

"Sec.  26.  Every  person  convicted  of  any  offense  defined  in  the 
four  preceding  sections  shall,  in  addition  to  the  puiiishDient 
therein  prescribed,  be  disqualified  from  holding  any  (f'fice  of 
honor,  profit,  or  trust  under  the  United  States;  but  nothing  there- 
in shall  be  construed  to  prevent  any  officer,  soldier,  sailor,  or 
marine  from  exercising  the  right  of  suffrage  in  any  election  dis- 
trict to  which  he  may  belong,  if  otherwise  qualified  according  to 
the  laws  of  the  State  in  which  he  offers  to  vote." 


CHAPTER  XI. 

OFFENSES  AGAINST  FOREIGN  AND  INTERSTATE 
COMMERCE. 

§  258.     Dynamite,  Etc.,  Not  to  Be  Carried  on  Vessels  or  Vehicless  Car- 
rying Passengers  for  Hire:   4278  and  5353 — 232. 

259.  Interstate  Commerce  Commission  to  Make  Eegulations  for  Trans- 

portation of  Explosives:   4279   and  5355 — 233. 

260.  Liquid  Nitroglycerine,  Etc.,  Not  to  Be  Carried  on  Certain  Vessels 

and  Vehicles:   35  St.  L.,  555—234. 

261.  Marking    of    Packages    of    Explosives;    Deceptive    Marking:    New 

Code,  235. 

262.  Death    or    Bodily    Injury    Caused    by    Such    Transportation:    5354 

—236. 

263.  Importation  and  Transportation  of  Lottery  Tickets,  Etc. :   II  Sup., 

435—237. 

264.  Interstate  Shipment  of  Intoxicating  Liquors;  Delivery  to  Be  Made 

Only  to  Bona  Fide  Consignee:  New  Code,  238. 

265.  Common  Carrier,  Etc.,  Not  to  Collect  Purchase  Price  of  Interstate 

Shipment  of  Intoxicating  Liquors:   New  Code,  239. 

266.  Packages   Containing   Intoxicating   Liquors   Shipped   in    Interstate 

Commerce  to  Be  Marked  as  Such :  New  Code,  240. 

267.  Importation   of    Certain   Wild   Animals,   Birds,    and   Eeptiles   For- 

bidden:  II  Sup.,   1174—241. 

268.  Transportation  of  Prohibited  Animals:  II  Sup.,  1174—242. 

269.  Marking  of  Packages:  II  Sup.,  1174—243. 

270.  Penalty  for  Violation  of  Preceding  Sections:   New  Code,  244. 

271.  Depositing  Obscene  Books,  Etc.,  with  Common  Carrier:   New  Code, 

245. 

In  Chapter  IX.  of  the  1910  Code,  there  are  fourteen  sections 
which  are  created  offenses  by  reason  of  the  power  of  tlie  general 
Government  to  supervise  interstate  and  internationfil  cvJinnien-e. 

§  258.  Dynamite,  Etc.,  Not  to  be  Carried  on  Vessels  or  Vehicles 
Carrying  Passengers  for  Hire. — Sections  4278  and  535.3  of  the  old 
Statutes  are  shorn  of  their  cumbersomeness  and  broadened  by 
new  Section  232,  in  the  following  words : 

287 


288  FOREIGN  AND  INTERSTATE  COMMERCE 

"Sec.  232.  It  shall  be  unlawful  to  transport,  carry,  or  convey, 
any  dynamite,  gunpowder,  or  other  explosive,  between  a  place  in 
a  foreign  coimtry  and  a  place  within  or  subject  to  tbc  jurisdiction 
of  the  United  States,  or  between  a  place  in  any  State,  Territory, 
or  District  of  the  United  States,  or  place  noncontiguous  to  but 
subject  to  the  jurisdiction  thereof,  and  a  place  in  any  other 
State,  Territory,  or  District  of  the  United  States,  or  place  non- 
contiguous to  but  subject  to  the  jurisdiction  thereof,  on  any  vessel 
or  vehicle  of  any  description  operated  by  a  common  carrier,  which 
vessel  or  vehicle  is  carrying  passengers  for  hire:  Provided,  That 
it  shall  be  lawful  to  transport  on  any  such  vessel  or  v(^hicle  small 
arms  ammunition  in  any  quantity,  and  such  fuses,  torpedoes, 
rockets,  or  other  signal  devices,  as  may  be  essential  to  promote 
safety  in  operation,  and  properly  packed  and  marked  samj^les  of 
explosives  for  laboratorj^  examination,  not  exceeding  a  net  weight 
of  one-half  pound  each,  and  not  exceeding  twenty  samples  at  one 
time  in  a  single  vessel  or  vehicle;  but  such  samples  shall  not  be 
carried  in  any  part  of  a  vessel  or  vehicle  which  is  intended  for  the 
transportation  of  passengers  for  hire :  Provided  further,  That 
nothing  in  this  section  shall  be  construed  to  prevent  the  irans- 
portation  of  military  or  naval  forces  with  their  accompanying 
munitions  of  war  on  passenger  equipment  vessels  or  vehicles." 

The  punishment  for  the  violation  of  this  section  is  determined 
in  Section  235,  wherein  Congress  provides,  that,  ''Whoever  shall 

knowingly  violate  or  cause  to  be  violated any  provision  of 

this  section shall  be  fined  not  more  than  two  thousand  dol- 
lars, or  imprisoned  not  more  than  eighteen  months,  or  both." 

§  259.  Interstate  Cominerce  Commission  to  Make  Regulations  for 
Transportation  of  Explosives. — Old  Sections  4279  and  5355  are 
amplified  and  added  to,  and  become  Section  233  in  the  New  O-jde, 
authorizing  the  Interstate  Commerce  Commission  to  formulate 
regulations,  in  the  following  words : 

"Sec.  233.  The  Interstate  Commerce  Commission  shall  formu- 
late regulations  for  the  safe  transportation  of  explosives,  which 
shall  be  binding  upon  all  common  carriers  engaged  in  interstate 
or  foreign  commerce  which  transport  explosives  by  land.  Said 
commission,  of  its  owti  motion,  or  upon  application  mnde  by  any 
interested  party,  may  make  changes  or  modifications  in  such  reg- 
ulations, made  desirable  by  new  information  or  altered  conditions. 
Such  regulations  shall  be  in  accord  \nth  the  best  kno^^^l  practi- 
cable means  for  securing  safety  in  transit,  covering  the  packing, 
marking,  loading,  handling  while  in  transit,  and  the  precautions 
necessary  to  determine  whether  the  material  when  otfered  is  in 


FOREIGN  AND  INTERSTATE  COMMERCE  289 

proper  condition  to  transport.  Such  regulations,  as  well  as  all 
changes  or  modifications  thereof,  shall  take  effect  ninety  days 
after  their  formulation  and  publication  by  said  commission  and 
shall  be  in  effect  until  reversed,  set  aside,  or  modified." 

§  260.  Liquid  Nitroglycerine,  Etc.,  Not  to  be  Carried  on  Certain 
Vessels  and  Vehicles.— The  Act  of  May  30,  1908,  35  Statute  at 
Large,  555,  becomes  Section  234  of  the  New  Code,  as  follows : 

"Sec.  234.  It  shall  be  unlawful  to  transport,  carry,  or  con- 
vey, liquid  nitroglycerine,  fulminate  in  bulk  in  dry  condition,  or 
other  like  explosive,  between  a  place  in  a  foreign  country  and  a 
place  within  or  subject  to  the  jurisdiction  of  the  United  States,  or 
between  a  place  in  one  State,  Territory,  or  District  of  the  United 
States,  or  place  non-contiguous  to  but  subject  to  the  jurisdiction 
thereof,  and  a  place  in  any  other  State,  Territory,  or  District  of 
the  United  States,  or  place  non-contiguous  to  but  subject  to  the 
jurisdiction  thereof,  on  any  vessel  or  vehicle  of  any  description 
operated  by  a  common  carrier  in  the  transportation  of  passengers 
or  articles  of  commerce  by  land  or  water." 

This  section  seems  to  prohibit  the  transportation  by  any  meth- 
od, by  any  common  carrier  that  carries  passengers  or  articles  of 
commerce.  It  will  be  noted,  however,  that  this  section  (234)  and 
Section  233,  above  quoted,  and  Section  235,  hereinafter  set  out, 
seem  to  have  been  repealed  by  the  schedule  in  Section  341 ;  and 
these  three  sections  do  not  seem  to  have  been  in  the  bill,  as  re- 
ported to  Congress  by  the  Committee  on  Revision,  but  because  of 
uncertainty,  they  are  quoted. 

§  261.  Marking  of  Packages  of  Explosives;  Deceptive  Marking. 
— Section  235  of  the  New  Code  reads  as  follows : 

' '  Sec.  235.  Every  package  containing  explosives  or  other  dan- 
gerous articles  when  presented  to  a  common  carrier  for  shipment 
shall  have  plainly  marked  on  the  outside  thereof  the  contents 
thereof;  and  it  shall  be  unlawful  for  any  person  to  deliver,  or 
cause  to  be  delivered  to  any  common  carrier  engaged  in  interstate 
or  foreign  commerce  by  land  or  water,  for  interstate  or  foreign 
transportation,  or  to  carry  upon  any  vessel  or  vehicle  engaged  in 
interstate  or  foreign  transportation,  any  explosive,  or  other  dan- 
gerous article,  under  any  false  or  deceptive  marking,  description, 
invoice,  shipping  order,  or  other  declaration,  or  without  informing 
the  agent  of  such  carrier  of  the  true  character  thereof,  at  or  be- 
fore the  time  such  delivery  or  carriage  is  made.  "Whoever  shall 
knowingly  violate,  or  cause  to  be  violated,  any  provision  of  this 
section,  or  of  the  three  sections  last  preceding,  or  any  regulation 


290  FOREIGN  AND  INTERSTATE  COMMERCE 

made  by  the  Interstate  Commerce  Commission  in  pursuance  there- 
of, shall  be  fined  not  more  than  two  thousand  dollars,  or  impris- 
oned not  more  than  eighteen  months,  or  both. ' ' 

It  will  be  borne  in  mind  that  this  section,  as  well  as  234  and 
233,  are  probably  repealed  by  Section  341  of  the  New  Code  as 
presented  by  the  Committee  on  Revision. 

§  262.  Death  or  Bodily  Injury  Caused  by  Such  Transportation. 
— ^Section  5354  of  the  old  statutes  becomes,  with  some  changes. 
Section  236  of  the  New  Code,  as  follows : 

''Sec.  236.  "When  the  death  or  bodily  injury  of  any  person  is 
caused  by  the  explosion  of  any  article  named  in  the  four  sections 
last  preceding,  while  the  same  is  being  placed  upon  any  vessel 
or  vehicle  to  be  transported  in  violation  thereof,  or  while  the 
same  is  being  so  transported,  or  while  the  same  is  being  removed 
from  such  vessel  or  vehicle,  the  person  knowingly  placing,  or 
aiding  or  permitting  the  placing,  of  such  articles  upon  any  such 
vessel  or  vehicle,  to  be  so  transported,  shall  be  imprisoned  not 
more  than  ten  years." 

The  imprisonment  in  the  old  statute  was  for  any  period  not 
less  than  two  years. 

§  263.  Importation  and  Transportation  of  Lottery  Tickets,  Etc. 
— The  defects  and  limitations  in  the  Act  of  March  second,  1895, 
28  Statute  at  Large,  963,  Second  Supplement,  435,  are  remedied 
by  Section  237  of  the  New  Code,  which  is  as  follows : 

"Sec.  237.  Whoever  shall  bring  or  cause  to  be  brought  into 
the  United  States  or  any  place  subject  to  the  jurisdiction  thereof, 
from  any  foreign  country,  for  the  purpose  of  disposing  of  the 
same,  any  paper,  certificate,  or  instrument  purporting  to  be  or 
to  represent  a  ticket,  chance,  share,  or  interest  in  or  dependent 
upon  the  event  of  a  lottery,  gift  enterprise,  or  similar  schame, 
offering  prizes  dependent  in  whole  or  in  part  upon  lot  or  chance, 
or  any  advertisement  of,  or  list  of  the  prizes  drawn  or  awarded 
by  means  of,  any  such  lottery,  gift  enterprise,  or  similar  scheme ; 
or  shall  therein  knowingly  deposit  or  cause  to  be  deposited  with 
any  express  company  or  other  common  carrier  for  carriage,  or 
shall  carry,  from  one  State,  Territory,  or  District  of  the  United 
States,  or  place  non-contiguous  to  but  subject  to  the  jurisdiction 
thereof,  to  any  other  State,  Territory,  or  District  of  the  United 
States,  or  place  non-contiguous  to  but  subject  to  the  jurisdiction 
thereof,,  or  from  any  place  in  or  subject  to  the  jurisdiction  of 
the  United  States  through  a  foreign  coiuitry  to  any  place  in  or 
subject  to  the  jurisdiction  thereof,  or  from  any  place  in  or  sub- 


FOREIGN  AND  INTERSTATE  COMMERCE  291 

ject  to  the  jurisdiction  of  the  United  States  to  a  foreign  country, 
any  paper,  certificate,  or  instrument  purporting  to  be  or  to  repre- 
sent a  tiek/3t,  chance,  share,  or  interest  in  or  dependent  upon,  the 
event  of  any  such  lottery,  gift  enterprise,  or  similar  scheme,  or 
any  advertisement  of,  or  list  of  the  prizes  drawn  or  awarded  by 
means  of,  any  such  lottery,  gift  enterprise,  or  similar  scheme,  or 
shall  knowingly  take  or  receive,  or  cause  to  be  taken  or  received, 
any  such  paper,  certificate,  instrument,  advertisement,  or  list  so 
brought,  deposited,  or  transported,  shall,  for  the  first  offense,  be 
fined  not  more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  two  years,  or  both ;  and  for  any  sul)sequent  offense  shall  be 
imprisoned  not  more  than  two  years." 

This  statute  meets  the  criticisms  leveled  at  the  former  statute 
by  Circuit  Judge  Jenkins,  in  the  95  Federal,  453,  Champion  vs. 
Ames,  and  by  Judge  McDowell,  in  125  Federal,  616,  United 
States  vs.  Whelpley,  w^herein  each  held  that  the  old  statute  did 
not  prevent  or  punish  the  sending  of  lottery  tickets  from  a 
State  to  a  Territory,  etc.,  or  from  a  Territory  to  a  State;  the 
language  being  "from  one  State  to  another."  This  new  statute 
covers  the  entire  ground,  and  protects  Territories,  Provisional 
Governments,  foreign  countries.  States,  and  non-contiguous  ter- 
ritory subject  to  the  jurisdiction  of  the  United  States.  This  Lim- 
itation has  been  held  to  be  Constitutional,  in  France  vs.  United 
States,  164  U.  S.,  676;  Champion  vs.  Ames,  188  U.  S.,  321;  and 
Francis  vs.  United  States,  188  U.  S.,  375. 

In  France  vs.  United  States,  164  U.  S.,  676,  41  Law  Ed.,  595, 
the  Supreme  Court  held  that  a  paper  that  contains  nothing  but 
figures  which  relate  to  a  drawing  already  completed,  is  not  a 
paper  certificate  or  instrument  purporting  to  be,  or  representing, 
a  ticket,  chance,  share,  or  interest,  in  a  lottery,  which  the  Act  of 
Congress  of  1895,  Chapter  191,  makes  it  imlawful  to  bring  into 
the  United  States,  or  deposit  in  the  mails,  or  carry  from  one 
State  to  another.  Such  statute  refers  only  to  a  paper,  which 
depends  upon  a  lottery,  the  drawing  of  which  has  not  yet  taken 
place. 

In  Champion  vs.  Ames,  188  U.  S.,  321,  47  Law  Ed.,  496,  the 
Supreme  Court  held  that  the  carriage  of  lottery  tickets  from  one 
State  to  another,  by  an  express  company,  engaged  in  carrying 
freight  and  packages  from  State  to  State,  is  interstate  commerce, 


292  FOREIGN  AND  INTERSTATE  COMMERCE 

which  Congress,  imder  its  power  to  regulate,  may  prohibit  by 
making  it  an  offense  against  the  United  States  to  cause  such 
tickets  to  be  so  carried. 

In  Francis  vs.  United  States,  188  U.  S.,  375,  47  Law  Ed.,  510, 
the  Supreme  Court  held  that  policy  slips,  written  by  a  customer 
to  indicate  his  choice  of  numbers,  and  delivered  by  him  to  an 
agent  of  the  policy  game,  to  be  forwarded  by  him  to  headquar- 
ters in  another  State,  are  not  within  this  Act.  Gathering  the 
facts  from  the  opinion,  they  show,  in  substance,  that  the  policy 
game,  the  lottery  in  question,  had  its  headquarters  in  Ohio,  and 
agencies  in  different  States.  A  person  wishing  to  take  a  chance 
went  to  one  of  these  agencies  (in  this  case,  in  Kentucky),  selected 
three  or  more  numbers,  wrote  them  on  a  slip,  and  handed  the 
slip  to  the  agent  (in  this  case,  to  the  defendant  Hoff),  paying 
the  price  of  the  chance  at  the  same  time,  and  keeping  a  duplicate, 
which  was  the  purchaser's  voucher  for  his  selection.  The  slip 
was  then  taken  by  the  defendant  Edgar,  to  be  carried  to  the 
principal  office,  which  was,  it  will  be  remembered,  in  Ohio; 
where  afterwards,  in  the  regular  course,  there  was  a  drawing  by 
the  defendant  Francis.  Thus,  the  carriage  from  Kentucky  to 
Ohio,  or  from  one  State  to  another,  relied  upon  as  the  object  of 
the  conspiracy,  and  as  the  overt  act  in  pursuance  of  the  con- 
spiracy, was  the  carriage  by  Edgar  of  slips  delivered  to  Hoff  by 
the  person  wishing  to  take  a  chance,  as  above  described.  It  will 
thus  be  noticed  that  the  slips  were  at  home,  as  between  the  pur- 
chaser and  the  lottery,  when  put  into  Hoff's  hands  in  Kentucky. 
They  had  reached  their  final  destination  in  point  of  law,  and 
their  latter  movements  were  internal  circulation  within  the 
sphere  of  the  lottery  company 's  possession ;  and  the  Supreme 
Court  said : 

"Therefore,  the  question  is  suggested  whether  the  carriage  of 
a  paper  of  any  sort  by  its  owner,  or  the  owner's  servant,  properly 
so-called,  with  no  view  of  a  later  change  of  possession,  can  be 
commerce,  even  when  the  carriage  is  in  the  aid  of  some  business 
or  traffic.  The  case  is  different  from  one  where,  the  carriage 
being  done  by  an  independent  carrier,  it  is  commerce  merely  by 
reason  of  the  business  of  carriage." 

This  question,  however,  the  Supreme  Court  did  not  see  fit  to 
answer,  for  the  case  went  off  upon  another  ground,  to  wit,  upon 


FOREIGN  AND  INTERSTATE  COMMERCE  293 

the  ground  that  the  papers  did  not  represent  a  ticket  or  interest 
in  a  lottery, 

"We  assume,  for  purposes  of  decision,  that  the  papers  kept 
by  the  purchasers  were  tickets,  or  did  represent  an  interest  in  a 
lottery;  but  these  papers  did  not  leave  Kentucky." 

§  264.  Interstate  Shipment  of  Intoxicating  Liquors ;  Delivery 
to  be  Made  Only  to  Bona  Fide  Consignee. — Brand  new  legislation 
is  Section  238  of  the  New  Code,  which  reads  as  follows : 

"Sec.  238.  Any  officer,  agent,  or  employee  of  any  railroad 
company,  express  company,  or  other  common  carrier,  who  shall 
knowingly  deliver  or  cause  to  be  delivered  to  any  person  other 
than  the  person  to  whom  it  has  been  consigned,  unless  upon  the 
written  order  in  each  instance  of  the  bona  fide  consignee,  or  to 
any  fictitious  person,  or  to  any  person  under  a  fictitious  name, 
any  spirituous,  vinous,  malted,  fermented,  or  other  intoxicating 
liquor  of  any  kind  which  has  been  shipped  from  one  State,  Ter- 
ritory, or  District  of  the  United  States,  or  place  non-contiguous 
to  but  subject  to  the  jurisdiction  thereof,  into  any  other  State, 
Territory,  or  District  of  the  United  States,  or  place  non-contigu- 
ous to  but  subject  to  the  jurisdiction  thereof,  or  from  any  foreign 
country  into  any  State,  Territory,  or  District  of  the  United 
States,  or  place  non-contiguous  to  but  subject  to  the  jurisdiction 
thereof,  shall  be  fined  not  more  than  five  thousand  dollars,  or 
imprisoned  not  more  than  two  years,  or  both." 

This  section,  it  will  be  noticed,  contains  three  divisions :  first, 
the  liquor  must  be  delivered  to  the  one  to  whom  consigned;  sec- 
ond, the  liquor  nuist  not  be  delivered  to  any  fictitious  person; 
third,  the  liquor  must  not  be  delivered  to  any  person  under  a  fic- 
titious name.  Of  course,  if  the  liquor  be  consigned  to  a  bona  fide 
consignee,  such  consignee  may  give  a  written  order  to  another 
person  to  receive  the  liquor. 

§  265.  Common  Carrier,  Etc.,  Not  to  Collect  Purchase  Price  of 
Interstate  Shipment  of  Intoxicating  Liquors. — All  railroads  and 
express  companies,  common  carriers,  or  other  persons  engaged 
in  interstate  commerce,  cannot,  in  any  way,  aid  in  the  transac- 
tion of  the  so-called  C.  0.  D.  liquor  business,  since  the  passage 
of  Section  239  of  the  New  Code,  which  is  new  legislation,  in  the 
following  words : 

"Sec.  239.  Any  railroad  company,  express  company,  or  other 
common  carrier,  or  any  other  person  who.  in  connection  with  the 
transportation  of  any  spirituous,  vinous,  malted,  fermented,  or 


294  forei(;n  and  interstate  commerce 

other  intoxicating  liquor  of  any  kind,  from  one  State,  Territory, 
or  District  of  the  United  States,  or  place  non-contiguous  to  but 
subject  to  the  jurisdiction  thereof,  into  any  other  State,  Terri- 
tory, or  District  of  the  United  States,  or  place  non-contiguous  to 
but  subject  to  the  jurisdiction  thereof,  or  from  any  foreign  coun- 
try into  any  State,  Territory,  or  District  of  the  United  States,  or 
place  non-contiguous  to  but  subject  to  the  jurisdiction  thereof, 
shall  collect  the  purchase  price  or  any  part  thereof,  before,  on, 
or  after  delivery,  from  the  consignee,  or  from  any  other  person, 
or  shall  in  any  manner  act  as  the  agent  of  the  buyer  or  seller  of 
any  such  liquor,  for  the  purpose  of  buying  or  selling  or  complet- 
ing the  sale  thereof,  saving  only  in  the  actual  transportation  and 
delivery  of  the  same,  shall  be  fined  not  more  than  five  thousand 
dollars. ' ' 

It  will  be  noted  that  no  part  of  the  purchase  price  shall  be 
collected  by  the  carrier  from  the  consignee  before  delivery,  at 
the  time  of  delivery,  or  after  delivery ;  nor  can  such  collection  be 
made  from  any  other  person.  It  will  also  be  noted  that  the  carrier 
cannot,  in  any  manner,  act  as  the  agent  of  the  buyer  or  seller  of 
any  such  liquor,  for  the  purpose  of  buying  or  selling,  or  com- 
pleting the  sale.  In  other  words,  the  carrier  must  engage  only 
in  the  transportation  and  delivery  of  the  same. 

§  266.  Packages  Containing  Intoxicating  Liquors  Shipped  in 
Interstate  Commerce  to  be  Marked  as  Such. — Other  new  legisla- 
tion upon  the  subject  of  interstate  carriage  of  intoxicating  liquors 
is  Section  240,  which  reads  as  follows : 

"Sec.  240.  Whoever  shall  knowingly  ship  or  cause  to  be 
shipped,  from  one  State,  Territory,  or  District  of  the  United 
States,  or  place  non-contiguous  to  but  subject  to  the  jurisdiction 
thereof,  into  any  other  State,  Territory,  or  District  of  the  United 
States,  or  place  non-contiguous  to  but  subject  to  the  jurisdiction 
thereof,  or  from  any  foreign  country  into  any  State,  Territory, 
or  District  of  the  United  States,  or  place  non-contiguous  to  but 
subject  to  the  jurisdiction  thereof,  any  package  of  or  package 
containing  any  spirituous,  vinous,  malted,  fermented,  or  other 
intoxicating  liquor  of  any  kind,  unless  such  package  be  so  labeled 
on  the  outside  cover  as  to  plainly  show  the  name  of  the  consignee, 
the  nature  of  its  contents,  and  the  quantity  contained  therein, 
shall  be  fined  not  more  than  five  thousand  dollars;  and  such 
liquor  shall  be  forfeited  to  the  United  States,  and  may  be  seized 
and  condeimaed  by  like  proceedings  as  those  provided  by  law 


FOEEIGN  AND  INTERSTATE  COMMERCE  295 

for  the  seizure  and  forfeiture  of  property  imported  into  the 
United  States  contrary  to  law." 

"While  Sections  238  and  239  fix  penalties  for  certain  trans- 
gressions by  the  carrier,  Section  240  creates  a  new  offense  for 
the  shipper,  and  does  not  relate,  in  any  sense,  to  the  carrier. 
Under  other  internal  revenue  decisions,  the  marking  and  brand- 
ing of  this  Section  will  be  construed  to  mean  upon  the  outside 
of  the  package,  so  as  to  be  plainly  seen  at  all  times.  Such  mark 
or  label  must  show  the  name  of  the  consignee,  the  nature  of  the 
contents  of  the  package,  and  the  quantity  of  the  contents. 

§  267.  Importation  of  Certain  Wild  Animals,  Birds,  and  Rep- 
tiles Forbidden.— The  Act  of  May  twenty-fifth,  1900,  31  Statute 
at  Large,  188,  Second  Supplement,  1174,  becomes  Section  241  of 
the  New  Code,  as  follows : 

"Sec.  241.  The  importation  into  the  United  States,  or  any 
Territory  or  District  thereof,  of  the  mongoose,  the  so-called  "fly- 
ing foxes"  or  fruit  bats,  the  English  sparrow,  the  starling,  and 
such  other  birds  and  animals,  as  the  Secretary  of  Agriculture 
may  from  time  to  time  declare  to  be  injurious  to  the  interests  of 
agriculture  or  horticulture,  is  hereby  prohibited;  and  all  such 
birds  or  animals  shall,  upon  arrival  at  any  port  of  the  United 
States,  be  destroyed  or  returned  at  the  expense  of  the  owner. 
No  person  shall  import  into  the  United  States  or  into  any  Terri- 
tory or  District  thereof,  any  foreign  wild  animal  or  bird,  except 
under  special  permit  from  the  Secretary  of  Agriculture :  Pro- 
vided, that  nothing  in  this  section  shall  restrict  the  importation 
of  natural  history  specimens  for  museums  or  scientific  collections, 
or  of  certain  cage  birds,  such  as  domesticated  canaries,  parrots, 
or  such  other  birds  as  the  Secretary  of  Agriculture  may  desig- 
nate. The  Secretary  of  the  Treasury  is  hereby  authorized  to 
make  regulations  for  carrying  into  effect  the  provisions  of  this 
section. ' ' 

§  268.  Transportation  of  Prohibited  Animals, — Taken  from  the 
same  Act,  will  be  found  the  substance  of  Section  242  of  the  New 
Code,  which  is  in  the  following  words: 

"Sec.  242.  It  shall  be  unlawful  for  any  person  to  deliver  to 
any  common  carrier  for  transportation,  or  for  any  common  car- 
rier to  transport  from  any  State,  Territory,  or  District  of  the 
United  States  to  any  other  State,  Territory,  or  District  thereof, 
any  foreign  animals  or  birds,  the  importation  of  which  is  prohib- 
ited, or  the  dead  bodies  or  parts  thereof  of  any  wild  animals  or 
birds,  where  such  animals  or  birds  have  been  killed  or  shipped 


296  FOREIGN  AND  INTERSTATE  COMMERCE 

in  violation  of  the  laws  of  the  State,  Territory,  or  District  in 
which  the  same  were  killed,  or  from  which  they  were  shipped : 
Provided,  That  nothing  herein  shall  prevent  the  transportation 
of  any  dead  birds  or  animals  killed  during  the  season  when  the 
same  may  be  lawfully  captured,  and  the  export  of  which  is  not 
prohibited  by  law  in  the  State,  Territory,  or  District  in  which  the 
same  are  captured  or  killed :  Provided  further,  That  nothing 
herein  shall  prevent  the  importation,  transportation,  or  sale  of 
birds  or  birds  plumage  manufactured  from  the  feathers  of  barn- 
yard fowls." 

The  section,  as  it  now  exists,  meets  the  objections,  and  reme- 
dies the  defects,  noted  in  United  States  vs.  Thompson,  147  Fed- 
eral, 637,  wherein  District  Judge  Amidon  discovered  and  held 
that  the  references  to  Section  1  of  the  original  act  was  a  clerical 
error,  such  section  having  no  relation  to  the  subject  matter,  be- 
cause Section  3  was  manifestly  intended.  Forms  for  indictment 
under  the  section  as  it  now  exists  will  be  found  after  noticing 
the  criticisms  of  the  Courts  thereon,  at  page  637  of  the  147  Fed- 
eral, IT.  S.  vs.  Thompson,  and  page  423  of  the  115  Federal,  Uni- 
ted States  vs.  Smith.  In  the  last  case,  the  Court  held  that  it  was 
essential,  to  constitute  the  offense  under  the  provisions  of  the 
section,  that  the  prohibited  game  should  either  have  been  shipped, 
or  delivered  to  the  carrier  for  shipment,  and  an  indictment 
which  charged  the  defendant  with  intent  to  ship  it  by  interstate 
commerce,  or  having  concealed  the  same  in  unmarked  packages 
for  the  purpose  of  such  shipment,  in  evasion  or  violation  of  the 
Act,  without  alleging  delivery  to  a  carrier,  was  insufficient. 

§  269.  Marking  of  Packages. — Section  243  of  the  New  Code 
was  taken  from  the  same  Act  of  May  twenty-fifth,  1900,  and  is  as 
follows : 

''Sec.  243.  All  packages  containing  the  dead  bodies,  or  the 
plumage,  or  parts  thereof,  of  game  animals,  or  game  or  other 
wild  birds,  when  shipped  in  interstate  or  foreign  commerce, 
shall  be  plainly  and  clearly  marked,  so  that  the  name  and  ad- 
dress of  the  shipper,  and  the  nature  of  the  contents  may  be 
readily  ascertained  on  an  inspection  of  the  outside  of  such  pack- 
age. ' ' 

§  270.  Penalty  for  Violation  of  Preceding  Sections. — Section 
244  of  the  New  Code  reads  as  follows : 

"Sec.  244.     For  each  evasion  or  violation  of  any  provision  of 


FOREIGN  AND  INTERSTATE  COMMERCE  297 

the  three  sections  last  preceding,  the  shipper  shall  be  fined  not 
more  than  two  hundred  dollars;  the  consignee  knowingly  receiv- 
ing such  articles  so  shipped  and  transported  in  violation  of  said 
sections  shall  be  fined  not  more  than  two  hundred  dollars;  and 
the  carrier  knowingly  carrying  or  transporting  the  same  in  vio- 
lation of  said  sections  shall  be  fined  not  more  than  two  hundred 
dollars." 

§  271.  Depositing  Obscene  Books,  Etc.,  with  Comomn  Carrier. — 
Section  245  of  the  New  Code  is  in  the  following  words : 

"Sec.  245.  "Whoever  shall  bring  or  cause  to  be  brought  into 
the  United  States  or  any  place  subject  to  the  jurisdiction  thereof, 
from  any  foreign  country,  or  shall  therein  knowingly  deposit  or 
cause  to  be  deposited  with  any  express  company  or  other  common 
carrier,  for  carriage  from  one  State,  Territory,  or  District  of  the 
United  States,  or  place  non-contiguous  to  but  subject  to  the 
jurisdiction  thereof,  to  any  other  State,  Territory,  or  District  of 
the  United  States,  or  place  non-contiguous  to  but  subject  to  the 
jurisdiction  thereof,  or  from  any  place  in  or  subject  to  the  juris- 
diction of  the  United  States  through  a  foreign  country  to  any 
place  in  or  subject  to  the  jurisdiction  thereof,  or  from  any  place 
in  or  subject  to  the  jurisdiction  of  the  United  States  to  a  foreign 
country,  any  obscene,  lewd,  or  lascivious,  or  any  filthy  book, 
pamphlet,  picture,  paper,  letter,  writing,  print,  or  other  matter 
of  indecent  character,  or  any  drug,  medicine,  article,  or  thing 
designed,  adapted,  or  intended  for  preventing  conception,  or  pro- 
ducing abortion,  or  for  any  indecent  or  immoral  use,  or  any 
written  or  printed  card,  letter,  circular,  book,  pamphlet,  adver- 
tisement, or  notice  of  how,  or  of  whom,  or  by  w^hat  means,  any 
of  the  hereinbefore  mentioned  articles,  matters,  or  things  may 
be  obtained  or  made ;  or  whoever  shall  knowingly  take  or 
cause  to  be  taken  from  such  express  company  or  other 
common  carrier  any  matter  or  thing  the  depositing  of  which  for 
carriage  is  herein  made  imlawful,  shall  be  fined  not  more  than 
five  thousand  dollars,  or  imprisoned  not  more  than  five  years,  or 
both." 

This  section,  it  will  be  noticed,  relates  not  to  the  use  of  the 
Post-office  establishment  in  the  transmission  of  things  therein 
denounced,  but  to  the  use  of  a  person  or  common  carrier,  or  ex- 
press company. 

The  meat  of  the  statute  is  substantially  the  same  as  Section 
211  of  the  New  Code,  which  relates  to  obscene  matter,  etc.,  as 
being  non-mailable,  and  which  is  denounced  in  Section  211  of  the 
New  Code,  heretofore  treated. 


CHAPTER  XII. 
THE  SLAVE  TRADE  AND  PEONAGE. 

§  272.  Legislation  Founded  on  Amendments. 

273.  Confining  or  Detaining  Slaves  on  Board  Vessel:  5375 — 246. 

274.  Seizing  Slaves  on  Foreign  Shore:   5376 — 247. 

275.  Bringing  Slaves  Into  the  United  States:  5377—248. 

276.  Equipping  Vessels  for  Slave  Trade:  5378—249. 

277.  Transporting  Persons  to  Be  Held  as  Slaves:  5379 — 250. 

278.  Hovering  on  Coast  with  Slaves  on  Board:  5380 — 251. 

279.  Serving  in  Vessels  Engaged  in  Slave  Trade:   5381  and  5382—252. 

280.  Receiving  or  Carrying  Away  Any  Person  to  Be  Sold  or  Held  as  a 

Slave:   5524—253. 

281.  Equipping,  Etc.,  Vessels  for  Slave  Trade:   5551—254. 

282.  Penalty  on  Persons  Building,  Equipping,  Etc.:  5552 — 255. 

283.  Forfeiture  of  Vessel  Transporting  Slaves:   5553—256. 

284.  Receiving  Persons  on  Board  to  Be  Sold  as  Slaves:  5554 — 257. 

285.  Vessel  Found  Hovering  on  Coast:  5555 — 258. 

286.  Forfeiture  of  Interest  in  Vessels  Transporting  Slaves:   5556 — 259. 

287.  Seizure  of  Vessels  Engaged  in  the  Slave  Trade:  5557—260. 

288.  Proceeds  of  Condemned  Vessels,  How  Distributed:   5558 — 261. 

289.  Disposal  of  Persons  Found  on  Board  Seized  Vessel:  5559 — 262. 

290.  Apprehension  of  Officers  and  Crew:  5560 — 263. 

291.  Removal  of  Persons  Delivered  from  Seized  Vessel:  5571 — 264. 

292.  To  What  Port  Captured  Vessels  Sent:  5563—265. 

293.  When  Owners  of  Foreign  Vessels  Shall  Give  Bond:   5564 — 266. 

294.  Instructions  to  Commanders  of  Armed  Vessels:    5567 — 267. 

295.  Kidnaping:   5525—268. 

296.  Holding  or  Returning  to  Peonage:   5526 — 269. 

297.  Obstructing  Execution  of  Above:   5527—270. 

298.  Bringing   Kidnaped   Persons   Into   the   United   States:    I   Sup.,   46 

—271. 

§  272.  Closely  akin  to  the  offenses  against  the  elective  fran- 
chise and  civil  rights  of  citzens  heretofore  treated  in  Chapter  X., 
are  some  of  the  offenses  to  be  treated  in  this  chapter;  both  of 
which  arise  by  reason  of  legislation  under  the  authority  of  the 
Thirtenth  and  Fourteenth  Amendments  to  the  Constitution. 

298 


THE  SLAVE  TRADE  AND  PEONAGE  299 

§  273.  Confining  or  Detaining  Slaves  on  Board  Vessel. — Section 
5375  of  the  1878  Statutes,  is  practically  re-enacted  in  the  New 
Code,  as  Section  246,  with  the  exception  that  the  word  "person" 
is  substituted  for  the  words  "negro  or  mulatto;"  and  such  new 
section  is  as  follows : 

"Sec.  246.  Whoever,  being  of  the  crew  or  ship's  company  of 
any  foreign  vessel  engaged  in  the  slave  trade,  or  being  of  the 
crew  or  ship's  company  of  any  vessel  owned  wholly  or  in  part, 
or  navigated  for  or  in  behalf  of  any  citizen  of  the  United  States, 
forcibly  confines  or  detains  on  board  such  vessel  any  person  as  a 
slave,  or,  on  board  such  vessel,  offers  or  attempts  to  sell  as  a  slave 
any  such  person,  or  on  the  high  seas,  or  anywhere  on  tide  water, 
transfers  or  delivers  to  any  other  vessel  any  such  person  with 
intent  to  make  such  person  a  slave,  or  lands  or  delivers  on  shore 
from  on  board  such  vessel  any  person  with  intent  to  make  sale 
of,  or  having  previously  sold  such  person  as  a  slave,  is  a  pirate, 
and  shall  be  imprisoned  for  life." 

In  prosecutions  under  this  section,  it  must  be  alleged  and 
shown  that  the  defendant  was  one  of  the  ship's  company,  and 
that  he  received  or  detained  on  board  one  or  more  pei*sons  with 
intent  to  make  slaves  of  them,  or  aided  and  abetted  others  in 
doing  so ;  and.  of  course,  that  he  was  a  citizen  of  the  United 
States.  United  States  vs.  Darnaud,  3  Wallace,  Jr.,  143.  In 
United  States  vs.  Westervelt,  5  Blatchf.,  30,  the  Court  said  that 
there  are  four  descriptions  of  the  offense  to  be  found  in  this 
section :  first,  a  seizing  the  negroes,  now  ' '  persons ; ' '  second,  for- 
cibly bringing  and  carying  them  on  board ;  third,  decoying  them ; 
fourth,  receiving  them  on  board  of  the  vessel. 

It  is  the  intent  to  make  a  slave  that  constitutes  the  essentials 
of  the  offense.  Neither  the  seizing,  nor  forcibly  bringing  or  car- 
rying, or  receiving,  a  person  on  board,  is  any  offense  without  such 
intent.  United  States  vs.  Battiste,  Second  Sumn.,  240;  United 
States  vs.  Libby,  1  W.  &  M.,  221 ;  United  States  vs.  Corrie,  Brun. 
Col.  Cases,  686,  25  Federal  Case  No.  14869.  In  the  Westervelt 
case,  cited  supra,  the  landing  and  seizing  of  negroes,  and  the 
forcibly  bringing  and  carrying  them  on  board  comprehended  the 
use  of  force,  and,  therefore,  the  decoying  of  them  and  the  re- 
ceiving them  on  board,  do  not  constitute  force. 

It  is  entirely  immaterial,  under  the  Westervelt  case,  under  U. 


300  THE  SLAVE  TRADE  AND  PEONAGE 

S.  VS.  Brown,  24  Federal  Case  No.  14656,  as  to  the  ownership  of 
the  vessel,  if  the  defendant  is  an  American  citizen. 

§  274.  Seizing  Slaves  on  Foreign  Shore. — Old  Section  5376  be- 
comes Section  247  of  the  New  Code,  in  the  following  words : 

''Sec.  247.  Whoever,  being  of  the  crew  or  ship's  company  of 
any  foreign  vessel  engaged  in  the  slave  trade,  or  being  of  the  crew 
or  ship's  company  of  any  vessel  owned  in  whole  or  part,  or  nav- 
igated for,  or  on  behalf  of,  any  citizen  of  the  United  States,  lands 
from  snch  vessel,  and  on  any  foreign  shore,  seizes  any  person 
with  intent  to  make  sncli  person  a  slave,  or  decoys,  or  forcibly 
brings,  or  carries  or  receives  such  person  on  board  such  vessel, 
with  like  intent,  is  a  pirate,  and  shall  be  imprisoned  for  life." 

The  substitution  of  the  word  "person"  for  the  words  "negro 
or  mulatto"  is  made  in  the  new  law.  In  the  case  of  the  United 
States  vs.  Corrie,  25  Federal  Cases,  658,  the  Court  held  that  even 
though  a  person  was  on  board  the  vessel  who  owned  the  negroes 
or  mulattoes,  he  could  not  be  convicted  or  punished  under  this 
statute,  unless  he  was  of  the  crew  or  ship's  company. 

§  275.  Bringing  Slaves  Into  the  United  States. — Old  Section 
5377  becomes  Section  248  of  the  New  Code,  without  substantial 
change,  except  that  the  words  "negro,  mulatto,  or  person  of 
color"  become  simply  the  word  "person": 

"Sec.  248.  Whoever  brings  within  the  jurisdiction  of  the 
United  States,  in  any  manner  whatsoever,  any  person  from  any 
foreign  kingdom  or  country,  or  from  sea,  or  holds,  sells,  or  other- 
wise disposes  of,  any  person  so  brought  in,  as  a  slave,  or  to  be 
held  to  service  or  labor,  shall  be  fined  not  more  than  ten  thou- 
sand dollars,  one  half  to  the  use  of  the  United  States  and  the 
other  half  to  the  use  of  the  party  who  prosecutes  the  indictment 
to  effect ;  and,  moreover,  shall  be  imprisoned  not  more  than  seven 
years. ' ' 

§  276.  Equipping  Vessels  for  Slave  Trade.— Section  5378  of  the 
old  statutes  becomes  Section  249  of  the  New  Code,  with  the 
change  of  the  words  "negro,  mulatto,  or  person  of  color"  to  the 
word  "person" : 

"Sec.  249.  Whoever  builds,  fits  out,  equips,  loads,  or  other- 
wise prepares,  or  sends  away,  either  as  master,  factor,  or  owner, 
any  vessel,  in  any  port  or  place  within  the  jurisdiction  of  the 
United  States,  or  causes  such  vessel  to  sail  from  any  port  or 
place  whatsoever,  within  such  jurisdiction,  for  the  purpose  of 
procuring  any  person  from  any  foreign  kingdom  or  country  to 


THE  SLAVE  TRADE  AND  PEONAGE  3OI 

be  transported  to  any  port  or  place  whatsoever,  to  be  held,  sold, 
or  otherwise  disposed  of  as  a  slave,  or  held  to  service  or  labor, 
shall  be  fined  not  more  than  five  thousand  dollars,  one-half  to 
the  use  of  the  United  States  and  the  other  half  to  the  use  of  the 
person  prosecuting  the  indictment  to  effect ;  and  shall,  moreover, 
be  imprisoned  not  more  than  seven  years. ' ' 

§  277.  Transporting-  Persons  to  Be  Held  as  Slaves. — Section 
5379  of  the  Old  Code  becomes  Section  250  of  the  New  Code  in 
the  following  words: 

' '  Section  250.  Whoever,  within  the  jurisdiction  of  the  United 
States,  takes  on  board,  receives,  or  transports  from  any  foreign 
kingdom  of  country,  or  from  sea,  any  person  in  any  vessel,  for 
the  purpose  or  holding,  selling,  or  otherwise  disposing  of  such 
person  as  a  slave,  or  to  be  held  to  service  or  labor,  shall  be  pun- 
ished as  prescribed  in  the  section  last  preceding. ' ' 

The  change  in  this  section  is  made  by  the  substitution  of  the 
word  "person"  for  the  words  "negro,  mulatto,  or  person  of 
color. ' ' 

§  278.  Hovering  on  Coast  With  Slaves  on  Board.^Section  5380 
of  the  old  statutes  becomes  Section  251  of  the  New  Code  in  the 
following  words: 

"Sec.  251.  Whoever,  being  the  captain,  master,  or  commander 
of  any  vessel  foimd  in  any  river,  port,  bay,  harbor,  or  on  the 
high  seas,  within  the  jurisdiction  of  the  United  States,  or  hover- 
ing on  the  coast  thereof,  having  on  board  any  person,  for  the  pur- 
pose of  selling  such  pei*son  as  a  slave,  or  with  intent  to  land  such 
person  for  any  such  purpose,  shall  be  fined  not  more  than  ten 
thousand  dollars  and  imprisoned  not  more  than  four  years." 

The  change  from  the  old  to  the  new  is  the  substitution  of  the 
word  "person"  for  the  words  "negro,  mulatto,  or  person  of 
color. ' ' 

§  279.  Serving  in  Vessels  Engaged  in  Slave  Trade. — Sections 
5381  and  5382  of  the  Old  Code  relate  to  slave  trade,  and  their 
salient  points  are  comprehended  in  new  Section  252  in  the  fol- 
lowing words : 

"Sec.  252.  Whoever,  being  a  citizen  of  the  United  States,  or 
other  person  residing  therein,  volimtarily  serves  on  board  of  any 
vessel  employed  or  made  use  of  in  the  transportation  of  slaves 
from  any  foreign  country  or  place  to  another,  shall  be  fined  not 
more  than  two  thousand  dollars  and  imprisoned  not  more  than 
two  years. ' ' 


302  THE  SLAVE  TRADE  AND  PEONAGE 

§  280.  Receiving  or  Carrying  Away  Any  Person  to  Be  Sold  or 
Held  as  a  Slave. — Section  5524  of  the  old  statutes  becomes  Section 
253  of  the  New  Code,  in  the  following  words: 

"Sec.  253.  Whoever,  being  the  master  or  owner  or  person 
having  charge  of  any  ves.sel,  receives  on  board  any  other  person, 
with  the  knowledge  or  intent  that  such  person  is  to  be  carried 
from  any  place  subject  to  the  jurisdiction  of  the  United  States 
to  any  other  place,  to  be  held  or  sold  as  a  slave,  or  carries  away 
from  any  place  subject  to  the  jurisdiction  of  the  United  States 
any  such  person,  with  the  intent  that  he  may  be  so  held  or  sold 
as  a  slave,  shall  be  fined  not  more  than  five  thousand  dollars,  or 
imprisoned  not  more  than  five  years,  or  both." 

§  281.  Equipping,  Etc.,  Vessels  for  Slave  Trade. — Section  5551 
of  the  old  statutes  becomes  Section  254  of  the  New  Code,  as 
follows : 

"Sec.  254.  No  person  shall,  for  himself  or  for  another,  as 
master,  factor,  or  owner,  build,  fit,  equip,  load,  or  otherwise  pre- 
pare any  vessel  in  any  port  or  place  within  the  jurisdiction  of 
the  United  States,  or  cause  any  vessel  to  sail  from  any  port  or 
place  within  the  jurisdiction  of  the  United  States  for  the  purpose 
of  procuring  any  person  from  any  foreign  kingdom,  place,  or 
country  to  be  transported  to  any  port  or  place  whatsoever,  to  be 
held,  sold,  or  otherwise  disposed  of,  as  a  slave,  or  to  be  held  to 
service  or  labor:  and  every  vessel  so  built,  fitted  out,  equipped, 
laden,  or  otherwise  prepared,  with  her  tackle,  apparel,  furniture, 
and  lading,  shall  be  forfeited;  one  moiety  to  the  use  of  the  United 
States  and  the  other  to  the  iLse  of  the  person  who  sues  for  the 
forfeiture  and  pro.secutes  the  same  to  effect." 

A  consideration  of  this  .section  will  be  found  in  charge  to  the 
grand  jurj-,  30  Federal  Case  No.  18268,  and  30  Federal  Case 
18269-a. 

In  the  ca.se  of  in  re  Sah  Quah,  31  Federal,  327,  Judge  Dawson 
held  that  this  legislation  was  founded  upon  the  Thirteenth 
Amendment  to  the  Constitution,  and  that  a  custom  which  pre- 
vailed among  the  unr-ivilizf-d  tribes  of  Indians  in  Alaska,  where- 
b}^  slaves  were  bought  and  sold  and  held  in  servitude  against 
their  will,  even  though  such  Indians  warft  not  citizens  of  the 
United  States,  they  were  dependent  subjects,  and  that  such  cus- 
tom and  servitude  was  contrary  to  this  legislation,  and  contrary 
to  the  Thirteenth  Amendment  to  the  Constitution,  and  that  a 


THE  SLAVE  TRADE  AND  PEONAGE  303 

person  so  held  in  slavery  would  be  released  by  the  Court  upon 
writ  of  habeas  corpus. 

§  2S2.  Penalty  on  Persons  Building.  Equipping.  Etc. — Section 
5552  of  the  old  Revised  Statutes  beeomes  Section  255  in  the  New 
Code,  as  follows: 

"Sec.  255.  Whoever  so  builds,  fits  out.  equips,  loads,  or  oth- 
erwise prepares  or  sends  away  any  vessel,  knowing  or  intending 
that  the  same  shall  be  employed  in  such  trade  or  business,  con- 
trary to  the  provisions  of  the  section  last  preceding,  or  in  any 
way  aids  or  abets  therein,  shall,  besides  the  forfeiture  of  the 
vessel,  pay  the  sum  of  two  thous<md  dollars;  one  moiet^-  thereof 
to  the  use  of  the  United  States  and  the  other  moiety  thereof  to  the 
use  of  the  pei'son  who  sues  for  and  prosecutes  the  same  to  effect.'' 

^  2S3.  Porfeiture  of  Vessel  Transporting  Slaves. — Section  5553 
of  the  old  statutes  becomes  Section  256  of  the  Xew  Code,  as  fol- 
lows : 

"Sec.  2511.  Eveiy  vessel  employed  in  cariying  on  the  slave 
trade  or  on  which  is  received  or  transported  any  person  from 
any  foreign  kingdom  or  eoimtry.  or  from  sea.  for  the  purpose  of 
holding,  selling,  or  otherwise  disposing  of  such  person  as  a  slave, 
or  of  holding  such  pei*son  to  service  or  labor,  shall,  together  with 
her  tackle,  apparel,  fiumiture.  and  the  goods  and  enects  which 
may  be  foimd  on  board,  or  which  may  have  been  imported  there- 
on in  the  same  voyage,  be  forfeited :  one  moiety  to  the  use  of  the 
United  States  and  the  other  to  the  use  of  the  person  who  sues  for 
and  prosecutes  the  forfeiture  to  effect." 

In  United  States  vs.  Schooner,  2  Paine.  25  Federal  Cases.  Xo. 
14755:  the  "Mar\-  Ann."  16  Federal  Cases  Xo.  9194:  and  the 
Charge  to  the  Grand  Jury.  30  Federal  Cases,  Xo.  1S26S.  will  be 
found  a  consideration  of  this  section.  The  5  Opinion  of  the  At- 
torneys General,  page  724.  also  contains  an  opinion  upon  seizure 
for  engaging  in  the  slave  trade. 

The  change  in  this  section  consists  in  the  substitution  of  the 
word  "person""  for  the  words  "negro,  nralatto.  or  person  of 
color." 

§  2S4.  Receiving  Persons  on  Board  to  be  Sold  as  Slaves. — 0".d 
Section  5554  becomes  new  Section  257  in  these  words : 

"Sec.  257.  Whoever,  being  a  citizen  of  the  United  States. 
takes  on  board,  receives,  or  trjinsports  any  person  for  the  purpose 
of  selling  such  person  as  a  slave  shall,  in  addition  to  the  forfeit- 
ure of  the  vessel,  pay  for  each  person  so  received  on  K>ard  or 


304  THE  SLAVE  TRADE  AXD  PEONAGE 

transported  the  sum  of  two  hundred  doHars.  to  be  recovered  in 
any  court  of  the  United  States;  the  one  moiety  thereof  to  the 
use  of  the  United  States  and  the  other  moiety  to  the  use  of  the 
person  who  sues  for  and  prosecutes  the  same  to  effect." 

The  change  in  this  section  consists  in  the  substitution  of  the 
word  "person"'  for  the  words  "negro,  mulatto,  or  person  of 
color. ' ' 

§  285.  Vessel  Found  Hovering  on  Coast. — Old  Section  5555 
becomes  new  Section  258,  as  follows : 

"Sec.  258.  Every  vessel  which  is  foimd  in  any  river,  poi't. 
bay,  or  harbor,  or  on  the  high  seas,  within  the  jurisdiction  of  the 
United  States,  or  hovering  on  the  coasts  thereof  and  having  on 
board  any  person,  with  intent  to  sell  such  person  as  a  slave,  or 
with  intent  to  land  the  same  for  that  purpose,  either  in  the  Uni- 
ted States,  or  elsewhere,  sliail.  together  with  her  trickle,  apparel, 
furniture,  and  the  goods  or  effects  on  board  of  her.  be  forfeited 
to  the  United  States." 

The  change  in  this  section  consists  in  the  substitution  of  the 
word  "person"  for  the  words  "negro,  mulatto,  or  person  of 
color. ' ' 

§  286.  Forfeiture  of  Interest  in  Vessels  Transporting  Slaves.- — 
Section  259  of  the  New  Code  takes  the  place  of  Section  5556  of 
the  old  Statutes,  and  is  as  follows : 

"Sec.  259.  It  shall  be  imlawful  for  any  citizen  of  the  United 
States,  or  other  pereon  residing  therein,  or  under  the  jurisdiction 
thereof,  directly  or  indirectly  to  hold  or  have  any  right  or  prop- 
erty in  any  vessel  employed  or  made  use  of  in  the  transportation 
or  carrying  of  slaves  from  one  foreign  coimtry  or  place  to  an- 
other, and  any  such  right  or  propertv  shall  be  forfeited,  and 
may  be  libeled  and  condenmed  for  the  use  of  the  person  suing 
for  the  same.  AYhoever  shall  violate  the  prohibition  of  this  sec- 
tion shall  also  forfeit  and  pay  a  sum  of  money  equal  to  double 
the  value  of  his  right  or  property  in  such  vessel ;  and  shall  also 
forfeit  a  sum  of  money  equal  to  double  the  value  of  the  interest 
he  had  in  the  slaves  which  at  any  time  may  be  transported  or 
carried  in  such  vessels." 

§  287.  Seizure  of  Vessels  Engaged  in  the  Slave  Trade. — Section 
5557  of  the  old  statutes  becomes  Section  260  of  the  Xew  Code. 
as  follows: 

"Sec.  260.  The  President  is  authorized,  when  he  deems  it  ex- 
pedient, to  man  and  employ  any  of  the  armed  vessels  of  the 
United  States  to  cruise  wherever  he  may  judge  attempts  are  raak- 


THE  SLAVE  TRADE  AND  PEONAGE  305 

ing  to  carry  on  the  slave  trade,  by  citizens  or  residents  of  the 
United  States,  in  contravention  of  laws  prohibitory  of  the  same ; 
and,  in  such  case,  he  shall  instruct  the  commanders  of  such  armed 
vessels  to  seize,  take,  and  bring  into  any  port  of  the  United  States, 
to  be  proceeded  against  according  to  law,  all  American  vessels, 
wheresoever  found,  which  may  have  on  board,  or  which  may  be 
intended  for  the  purpose  of  taking  on  board,  or  of  transporting, 
or  may  have  transported  any  person,  in  violation  of  the  provis- 
ions of  any  Act  of  Congress  prohibiting  the  traffic  in  slaves." 

§  288.  Proceeds  of  Condemned  Vessels ;  How  Distributed. — Sec- 
tion 5558  of  the  old  statutes  is  so  modified  in  Section  261  of  the 
New  Code,  in  conformity  with  the  abolition  of  prize  money  by 
Congress,  as  to  require  the  proceeds  of  all  forfeitures  to  be  paid 
into  the  Treasury  of  the  United  States,  and  is  in  the  following 
words : 

"'Sec.  261.  The  proceeds  of  all  vessels,  their  tackle,  apparel, 
and  furniture,  and  the  goods  and  effects  on  board  of  them,  which 
are  so  seized,  prosecuted,  and  condemned,  shall  be  paid  into  the 
Treasury  of  the  United  States. ' ' 

§  289.  Disposal  of  Persons  Found  on  Board  Seized  Vessel. — Sec- 
tion 5559  of  the  Old  Code  becomes  Section  262  of  the  New  Code, 
by  the  mere  change  of  the  words  "negro,  mulatto,  or  person  of 
color.'"  to  the  word  ''person."  and  is  in  the  following  words: 

''Sec.  262.  The  officers  of  the  vessel  making  such  seizure  shall 
safely  keep  ever%*  person  found  on  board  of  any  vessel  so  seized, 
taken,  or  brought  into  port  for  condemnation,  and  shall  deliver 
ever\'  such  person  to  the  marshal  of  the  district  into  which  he  may 
be  brought,  if  into  a  port  of  the  United  States,  or  if  elsewhere,  to 
such  person  as  may  be  lawfully  appointed  by  the  President,  in 
the  manner  directed  by  law.  transmitting  to  the  President,  as 
soon  as  may  be  after  such  delivery,  a  descriptive  list  of  such  per- 
sons, in  order  that  he  may  give  directions  for  the  disposal  of 
them. 

^  290.  Apprehension  of  Officers  and  Crew. — Section  5560  of  the 
Old  Code  becomes  Section  263  of  the  Xew  Code  in  the  following 
words : 

"Sec.  263.  The  commanders  of  such  commissioned  vessels 
shall  cause  to  be  apprehended  and  taken  into  custody  every  per- 
son foimd  on  hoard  of  such  offending  vessel  so  seized  and  taken, 
being  of  the  officers  or  crew  thereof,  and  him  convey,  as  soon  as 
conveniently  may  be.  to  the  civil  authority  of  the  United  States, 
to  be  proceeded  against  in  due  course  of  law." 


306  THE  SLAVE  TRADE  AND  PEONAGE 

§  291.  Removal  of  Persons  Delivered  from  Seized  Vessels. — Sec- 
tion 5571  of  the  1878  Statutes,  by  substituting  the  word  "per- 
sons" for  the  words  "negroes,  mulattoes,  or  persons  of  color," 
becomes  Section  264  of  the  New  Code,  as  follows : 

"Sec.  264.  The  President  is  authorized  to  make  such  regula- 
tions and  arrangements  as  he  may  deem  expedient  for  the  safe 
keeping,  support,  and  removal  beyond  the  limits  of  the  United 
States  of  all  such  persons  as  may  be  so  delivered  and  brought 
within  its  jurisdiction." 

§292.  To  What  Port  Captured  Vessels  Sent.— Section  5563  of 
the  Old  Code,  by  the  addition  of  the  words  "or  District,"  be- 
comes Section  265  of  the  New  Code,  as  follows : 

"Sec.  265.  It  shall  be  the  duty  of  the  commander  of  any 
armed  vessel  of  the  United  States,  whenever  he  makes  any  cap- 
ture under  the  preceding  provisions,  to  bring  the  vessel  and  her 
cargo,  for  adjudication,  into  some  port  of  the  State,  Territory, 
or  District  to  which  such  vessel  so  captured  may  belong,  if  he  can 
ascertain  the  same ;  if  not,  then  into  any  convenient  port  of  the 
United  States." 

§  293.  When  Owners  of  Foreign  Vessels  Shall  Give  Sond. — ^By 
substituting  the  words  ' '  clearing  from  any  port  within  the  juris- 
diction of  the  United  States,"  for  the  words  "clearing  out  for 
any  of  the  coasts  or  kingdoms  of  Africa,"  Section  5564  of  the 
old  statutes  becomes  Section  266  of  the  New  Code,  as  follows : 

"Sec.  266.  Every  owner,  master,  or  factor  of  any  foreign  ves- 
sel clearing  from  any  port  within  the  jurisdiction  of  the  United 
States,  and  suspected  to  be  intended  for  the  slave  trade  and  the 
suspicion  being  declared  to  the  officer  of  the  customs  by  any  citi- 
zen, on  oath,  and  such  information  being  to  the  satisfaction  of  the 
officer,  shall  first  give  bond,  wdth  sufficient  sureties,  to  the  Treas- 
urer of  the  United  States  that  none  of  the  natives  of  any  foreign 
country  or  place  shall  be  taken  on  board  such  vessel  to  be  trans- 
ported or  sold  as  slaves  in  any  other  foreign  port  or  place  what- 
ever, within  nine  months  thereafter. ' ' 

§  294.  Instructions  to  Commanders  of  Armed  Vessels. — By 
changing  the  words  "negroes,  mulattoes,  and  persons  of  color" 
to  the  word  "persons,"  and  the  w^ords  "coast  of  Africa"  for  the 
words  "country  from  which  they  were  taken,"  Section  5567  of 
the  old  statutes  becomes  Section  267  of  the  New  Code,  as  follows : 

"Sec.  267.  The  President  is  authorized  to  issue  instructions 
to  the  commanders  of  armed  vessels  of  the  United  States,  direct- 
ing them,  whenever  it  is  practicable,  and  under  such  rules  and 


THE  SLAVE  TRADE  AND  PEONAGE  307 

regulations  as  he  may  prescribe,  to  proceed  directly  to  the  coun- 
try from  which  they  were  taken,  and  there  hand  over  to  the 
agent  of  the  United  States  all  such  persons,  delivered  from  on 
board  vessels  seized  in  the  prosecution  of  the  slave  trade;  and 
they  shall  afterward  bring  the  captured  vessels  and  persons  en- 
gaged in  prosecuting  such  trade  to  the  United  States  for  trial  and 
adjudication. ' ' 

§  295.  Kidnaping. — Section  5525  of  the  Old  Code  becomes  Sec- 
tion 268  of  the  New  Code,  in  the  following  words : 

"Sec.  268.  "Whoever  kidnaps  or  carries  away  any  other  per- 
son, with  the  intent  that  such  other  person  to  be  sold  into  invol- 
untary servitude,  or  held  as  a  slave ;  or  who  entices,  persuades, 
or  induces  any  other  person  to  go  on  board  any  vessel  or  to  any 
other  place  with  the  intent  that  he  may  be  made  or  held  as  a 
slave,  or  sent  out  of  the  coimtry  to  be  so  made  or  held;  or  who 
in  any  way  knowingly  aids  in  causing  any  other  person  to  be 
held,  sold,  or  carried  away  to  be  held  or  sold  as  a  slave,  shall  be 
fined  not  more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both." 

§  296.  Holding  or  Returning  to  Peonage. — The  most  interesting 
and  practicable  section  in  this  Chapter  is  Section  269  of  the  New 
Code,  which  takes  the  place  of  old  Section  5526,  and  is  in  the 
following  words: 

"Sec.  269.  Whoever  holds,  arrests,  returns,  or  causes  to  be 
held,  arrested,  or  returned,  or  in  any  manner  aids  in  the  arrest 
or  return  of  any  person  to  a  condition  of  peonage,  shall  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not  more  than 
five  years,  or  both. ' ' 

Judge  Newman,  in  United  States  vs.  Eberhart,  127  Federal, 
252,  held  that  this  statute  had  no  application  to  any  State  or 
Territory,  except  the  Territory  of  New  Mexico.  By  implication, 
this  was  overruled  by  United  States  vs.  McClellan,  in  127  Federal, 
971,  by  Judge  Speer,  and  was  directly  overruled  by  the  Supreme 
Court  of  the  United  States  in  Clyatt  vs.  United  States,  197  U.  S., 
207,  49  Law  Ed.,  726;  the  Supreme  Court  saying,  in  substance, 
that  the  prohibition  against  peonage  in  any  State  or  Territory  of 
the  United  States,  contained  in  Sections  1990  and  5526  of  the  Old 
Code,  was  authorized  by  the  provisions  of  the  United  States  Con- 
stitution, the  Thirteenth  Amendment  forbidding  slavery  or  in- 
voluntary servitude  within  the  United  States,  or  any  place  sub- 


308  'i'll^  SLAVE  TRADE  AND  PEONAGE 

ject  to  their  jurisdietiun,  and  granting  to  Congress  the  power  to 
enforce  the  prohibition  by  appropriate  legislation. 

The  statute,  it  will  be  noted,  comprehends  several  different 
forms  of  peonage,  to  wit,  holding,  arresting,  returning,  or  caus- 
ing to  be  held,  arrested,  or  returned.  In  the  Clyatt  case,  the  Su- 
preme Court  reversed  the  judgment  of  conviction,  because  there 
was  no  evidence  that  the  peons  had  been  previously  held  in 
peonage,  and  the  indictment  charged  that  there  was  a  return  to 
peonage.  Of  course,  if  the  indictment  had  charged  holding  in 
peonage,  without  returning  to  peonage,  the  evidence  would  doubt- 
less have  been  sufficient,  and  the  case  would  have  been  affirmed. 
The  Supreme  Court,  in  the  Clyatt  case,  says: 

"That  which  is  contemplated  by  the  statute  is  compulsory 
service,  to  secure  the  payment  of  a  debt.  Is  this  legislation  with- 
in the  power  of  Congress  ?  It  may  be  conceded,  as  a  general  prop- 
osition, that  the  ordinary  relations  of  individual  to  individual  are 
subject  to  the  control  of  the  States,  and  are  not  entrusted  to  the 
general  Government;  but  the  Thirteenth  Amendment,  adopted 
as  an  outcome  of  the  Civil  War,  reads. 

"  'See.  1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  in  any 
place  subject  to  their  jurisdiction. 

"  'Sec.  2.  Congress  shall  have  the  power  to  enforce  this  Arti- 
cle by  appropriate  legislation.' 

This  Amendment  denounces  a  status  or  condition,  irrespective  of 
the  manner  or  authority  by  which  it  is  created.  The  prohibitions 
of  the  Fourteenth  and  Fifteenth  Amendments  are  largely  upon 
the  acts  of  the  States ;  but  the  Thirteenth  Amendment  names  no 
party  or  authority,  but  simply  forbids  slavery  and  involuntary^ 
servitude,  grants  to  Congress  the  power  to  enforce  this  prohibi- 
tion by  appropriate  legislation." 

In  the  peonage  cases,  123  Federal,  671,  District  Judge  Jones 
defined  "the  condition  of  peonage"  to  be  to  hold  or  return  a  per- 
son to  enforced  servitude,  wherein  the  servitor  is  restrained  of 
his  liberty,  and  compelled  to  labor  in  liquidation  of  some  debt  or 
obligation,  either  real  or  pretended,  against  his  will. 

In  the  peonage  cases  just  cited,  and  in  the  peonage  cases  by 
Judge  Trieber,  136  Federal,  707,  it  was  held,  in  substance,  that 
it  was  entirely  immaterial  that  the  contract  of  employment  was 
voluntarily  made  by  the  laborer;  and  it  was  entirely  immaterial 


THE  SLAVE  TRADE  AND  PEONAGE  309 

whether  it  was  made  for  the  present  or  pre-existing  consideration. 
In  other  words,  when  the  person  desires  to  abandon  the  service, 
from  that  moment  on  the  holding  of  such  a  person  is  the  holding 
of  him  within  the  meaning  of  the  statute,  to  a  condition  of  peon- 
age. So,  likewise,  District  Judge  Jones  held  that  to  falsely  pre- 
tend to  another  that  he  was  accused  of  crime,  and  to  pretent  to 
prevent  his  conviction  if  he  will  pay  a  sum  of  money,  etc.,  all 
come  within  the  statute. 

In  in  re  peonage  charge,  138  Federal,  636§,  and  United  States 
vs.  Cole,  153  Federal,  801,  peonage  was  defined  to  be  the  status 
or  condition  of  compulsory  service,  in  the  payment  of  an  alleged 
indebtedness  by  the  peon  to  his  master.  The  same  definition  is 
practically  adopted  in  United  States  vs.  McClellan,  127  Federal, 
971. 

§  297.  Obstructing  Execution  of  Above. — Section  5527  of  the 
Old  Code  becomes  Section  270  of  the  New  Code,  as  follows : 

''See.  270.  Whoever  obstructs,  or  attempts  to  obstruct,  or  in 
any  way  interferes  with  or  prevents  the  enforcement  of  the  sec- 
tion last  preceding,  shall  be  liable  to  the  penalties  therein  pre- 
scribed." 

§  298.  Bringing  Kidnaped  Persons  Into  the  United  States. — By 
broadening  the  Act  of  June  23,  1874.  18  Statute  at  Large,  251,  1 
Supplement,  46,  to  extend  so  as  to  apply  to  any  place  subject  to 
the  jurisdiction  of  the  United  States,  such  Act  becomes  Section 
271  of  the  New  Code,  as  follows : 

"Sec.  271.  Whoever  shall  knowingly  and  wilfully  bring  into 
the  United  States  or  any  place  subject  to  the  jurisdiction  thereof, 
any  person  inveigled  or  forcibly  kidnaped  in  any  other  country, 
with  intent  to  hold  such  person  so  inveigled  or  kidnaped  in  con- 
finement or  to  any  involuntary  servitude ;  or  whoever  shall  know- 
ingly and  wilfully  sell,  or  cause  to  be  sold,  into  any  condition  of 
involuntary  servitude,  any  other  person  for  any  term  whatever; 
or  whoever  shall  knowingly  and  wilfully  hold  to  involuntary 
servitude  any  person  so  brought  or  sold,  shall  be  fined  not  more 
than  five  thousand  dollars  and  imprisoned  not  more  than  five 
years." 


CHAPTER  XIII. 

OFFENSES  WITHIN  THE  ADMIRALTY,  MARITIME,  AND 

TERRITORIAL  JURISDICTION  OF  THE 

UNITED  STATES. 

Note. — The  first  numbers  indicate  the  old  Sections;  then  follows  a  dash, 
and  after  the  dash  the  numbers  indicate  the  Sections  in  the  new  Code. 

§  299.  Generally,  Federal  Territory. 

300.  Places  Defined:   New  Code,  272. 

301.  Murder:   5339—273. 

302.  Murder  Verdict:  29  Stat.  L.,  487. 

303.  Manslaughter:   5341—274. 

304.  Punishment  for  Murder  and  Manslaughter:  5339  and  5343 — 275. 

305.  Assault    with    Intent    to    Commit    Murder,    Rape,    Robbery,    Etc. : 

5346—276. 

306.  Attempt  to  Commit  Murder  or  Manslaughter:   5342 — 277. 

307.  Rape:    5343—278. 

308.  Having  Carnal  Knowledge  of  Female  Under  Sixteen:    New  Code, 

279. 

309.  Seduction  of  Female  Passenger  on  Vessel:    5349 — 280. 

310.  Payment  of  Fine  to  Female  Seduced;  Evidence  Required;  Limita- 

tions on  Indictment:  5350  and  5351 — 281. 

311.  Punishment  for  Loss  of  Life  by  Misconduct  of  Officers,  Owners, 

Charterers,  Etc.,  of  Vessels:   5344—282. 

312.  Maiming:    5348—283. 

313.  Robbery:   5370—284. 

314.  Arson  of  Dwelling  House:  5385—285. 

315.  Arson  of  Arsenal,  Etc.;  Other  Buildings,  Etc.:  5386 — 286. 

316.  Larceny:   5356—287. 

317.  Receiving,  Etc.,  Stolen  Goods:  5357—288. 

318.  Laws    of    State    Adopted    for    Punishing    Wrongful    Acts,    Etc.: 

5391—289. 

§  299.  The  New  Code,  in  Section  272,  sets  forth  certain  specific 
national  territory,  within  and  upon  which  the  commsision  of  the 
acts  mentioned  in  this  chapter  become  exclusive  Federal  offenses. 
The  offenses  upon  which  Congress  has  legislated  under  the  head 

310 


ADMIRALTY,   MARITIME,   ETC.  311 

of  admiralty,  maritime,  and  territorial  jurisdiction  of  the  Fed- 
eral Government  are  murder,  manslaughter,  intent  to  murder, 
rape,  robbery,  certain  carnal  knowledge  of  the  female,  loss  of  life 
by  misconduct  of  the  officers  of  a  vessel,  maiming,  arson,  larceny, 
receiving  stolen  goods,  and  a  general  statute,  which  creates  a 
Federal  offense  of  every  State  offense  not  herein  mentioned,  when 
the  same  is  committed  within  the  limits  spoken  of. 

§  300.  The  Places  Defined.— Section  272  of  the  New  Code, 
which  makes  unnecessary^  a  repetition  of  the  place  in  defining 
each  separate  offense,  reads  as  follows : 

"Sec.  272.  The  crimes  and  offenses  defined  in  this  chapter 
shall  be  punished  as  herein  prescribed : 

' '  First.  When  committed  upon  the  high  seas,  or  on  any  other 
waters  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States  and  out  of  the  jurisdiction  of  any  particular  State, 
or  when  committed  within  the  admiralty  and  maritime  jurisdic- 
tion of  the  United  States  and  out  of  the  jurisdiction 
of  any  particular  State  on  board  any  vessel  belonging  in 
whole  or  in  part  to  the  United  States  or  any  citizen  thereof, 
or  to  any  corporation  created  by  or  under  the  laws  of  the  United 
States,  or  of  any  State,  Territory,  or  District  thereof. 

"Second.  When  committed  upon  any  vessel  registered,  li- 
censed, or  enrolled  under  the  laws  of  the  United  States,  and  being 
on  a  voyage  upon  the  waters  of  any  of  the  Great  Lakes,  namely : 
Lake  Superior,  Lake  Michigan,  Lake  Huron,  Lake  Saint  Clair, 
Lake  Erie,  Lake  Ontario,  or  any  of  the  waters  connecting  any  of 
said  lakes,  or  upon  the  River  Saint  Lawrence  where  the  same  con- 
stitutes the  International  boundary  line. 

"Third.  When  committed  within  or  on  any  lands  reserved  or 
acquired  for  the  exclusive  use  of  the  United  States,  and  under  the 
exclusive  jurisdiction  thereof,  or  any  place  purchased  or  other- 
wise acquired  by  the  United  States  by  consent  of  the  legislature 
of  the  State  in  which  the  same  shall  be,  for  the  erection  of  a  fort, 
magazine,  arsenal,  dock-yard,  or  other  needful  building. 

"Fourth.  On  any  island,  rock,  or  key,  containing  deposits  of 
guano,  which  may,  at  the  discretion  of  the  President,  be  consid- 
ered as  appertaining  to  the  United  States. ' ' 

While  this  section  is  new,  some  of  its  parts  are  to  be  found 
in  old  Statute  5339,  old  Statute  5570,  and  Article  I.,  Section  8, 
of  the  Constitution.  The  first  division  of  the  Section,  it  will  be 
noted,  gives  the  jurisdiction  to  offenses  upon  certain  waters.  The 
second  division  gives  jurisdiction  to  offenses  upon  vessels  when  on 


3l2  ADMIRALTY,    MARITIME,   ETC. 

cetrain  waters.  The  third  division  gives  jurisdiction  over  of- 
fenses that  are  committed  upon  lands  over  which  the  Govern- 
ment has  acquired  exchisive  jurisdiction,  by  purchase  or  other- 
wise ;  but  it  must  be  understood  that  this  division  does  not  mean 
that  there  is  any  jurisdiction  in  the  Federal  Government,  unless 
there  be  cession  thereof  under  the  Federal  and  State  laws.  Thus, 
the  renting  of  a  building  in  which  the  Federal  Post-office  is  con- 
ducted would  give  no  jurisdiction  to  the  Federal  Government  for 
an  assault  committed  within  that  building  by  one  private  citizen 
upon  another  private  citizen.  The  jurisdiction  of  the  Govern- 
ment to  punish  one  who  assaulted  the  postmaster  in  the  perform- 
ance of  his  official  duties,  rests  upon  an  entirely  different  statute, 
and  is  not  gromided  upon  the  section  now  being  noticed.  Dis- 
trict Judge  Whitson,  in  United  States  vs'.  Tully,  140  Federal, 
899,  held  in  substance,  that  the  jurisdiction  of  a  Federal  Court 
to  try  a  person  for  a  criminal  offense  on  the  ground  that  it  was 
committed  within  a  fort  or  military  reservation,  such  fort  or  res- 
ervation nuist  have  been  established  by  law,  as  contemplated  by 
Article  I.,  Section  8,  of  the  Constitution,  either  by  purchase,  with 
the  consent  of  the  Legislature  of  the  State,  or  by  reservation  of 
public  lands  therefor  by  compact  with  the  State  at  the  time  of 
its  admission,  and  exclusive  jurisdiction  over  the  same  must  have 
been  reserved  to  the  United  States,  either  by  express  words  or 
necessary  implication.  Judge  Maxey,  in  111  Federal,  630,  Uni- 
ted States  vs.  Lewis,  held  in  substance,  that  whether  a  homicide 
committed  within  the  boundaries  of  a  State  constitutes  an  of- 
fense against  the  laws  of  the  United  States,  of  which  a  Federal 
Court  has  jurisdiction,  depends  on  two  questions:  first,  whether 
there  has  been  such  a  cession  by  the  State  to  the  United  States 
of  the  territory  upon  which  the  act  alleged  to  constitute  the 
crime  was  committed,  as  to  render  such  territory  a  place  or  dis- 
trict of  country  under  the  exclusive  jurisdiction  of  the  United 
States,  which  is  a  question  of  law  for  the  Court ;  and,  second,  if 
such  cession  was  made,  whether  the  act  was  committed  within 
the  territory  so  ceded,  which  is  a  question  of  fact  to  be  submitted 
to  the  jury.  In  United  States  vs.  Carter,  84  Federal,  622,  the 
Court  held  that  a  defendant  was  properly  indicted  in  the  Federal 
jurisdiction  for  a  murder  committed  on  board  the  United  States 


ADMIRALTY,   MARITIME,   ETC.  313 

battle-ship  "Indiana,"  then  moored  at  Cob  Dock,  being  within 
territory  which  had  not  been  purchased  by  the  United  States,  but 
over  which  exclusive  jurisdiction  had  been  ceded  to  the  United 
States  by  the  New  York  Legislature.  In  United  States  vs.  Hew- 
ecker,  79  Federal,  page  59,  the  Court  held  that  where  a  seaman 
an  on  American  schooner  was  indicted  for  having  shot,  in  the 
harbor  of  Havana,  one  Miller,  who  died  therefrom  in  the  hospital 
three  days  afterwards,  at  Havana,  on  January  21,  1892,  and  the 
indictment  was  not  found  imtil  March  10,  1896 ;  the  defendant, 
in  the  meantime,  having  been  imprisoned  in  Havana,  upon  convic- 
tion for  an  assault,  and  on  the  expiration  of  his  sentence  delivered 
to  the  United  States  authorities,  that  the  defendant  was  not  a  fug- 
itive from  justice,  under  Section  1045,  so  as  to  be  excepted  from 
the  exemption  of  indictment  after  three  years,  and  that  the  death, 
having  taken  place  on  land  within  a  foreign  jurisdiction,  the 
case  was  not  one  of  wilful  murder  at  Common  Law,  under  the 
Federal  authorities;  and  that  the  L^nited  States  statute.  Section 
5339,  though  making  the  offense  punishable  with  death,  neither 
declares  it  to  be  murder,  nor  does  it  limit  that  offense  to  all 
cases  within  a  year  and  a  day,  which  at  Common  Law  was  an  es- 
sential element  of  the  offense  of  murder ;  and,  therefore,  that  the 
ease  was  not  one  of  wilful  murder,  and  the  indictment  was  barred 
by  the  three-year  limitation. 

.  A  cession  by  a  State  to  the  United  States  of  "exclusive  juris- 
diction" over  certain  land,  providing  that  the  State  shall  retain 
concurrent  jurisdiction  with  the  United  States,  so  far  that  the 
process,  civil  or  criminal,  issued  under  the  authority  of  the  State 
may  be  executed  by  the  State  officers  upon  any  person  amenable 
to  the  same,  within  the  limits  of  the  land  so  ceded,  confers  on  the 
United  States  exclusive  jurisdiction  within  the  meaning  of  Re- 
vised Statutes  5339.  United  States  vs.  Meagher.  37  Federal,  875. 
Of  course,  the  burden  is  on  the  Government  to  show  that  the 
crime  was  committed  on  land  which  was  under  the  exclusive  juris- 
diction of  the  United  States. 

In  Cook  vs.  United  States,  138  U.  S.,  page  185,  34  Law  Edition, 
906,  it  was  held  that  a  public  land  strip  lying  between  Texas  and 
New  Mexico  and  Colorado  and  Kansas,  over  which  jurisdiction 
had  been  vested  in  the  United  States  after  the  commission  of  the 


314  ADMIRALTY,    MARITIME,   ETC. 

offense  of  murder  thereon,  was  properly  within  the  control  of  the 
Federal  Courts,  and  the  offense  punishable  therein. 

The  fourth  division  relates  to  offenses  upon  certain  islands, 
rocks,  or  keys,  which  contain  deposits  of  guano,  the  beginning 
of  which  recognition  was  old  Statute  5570,  and  is  the  extending 
of  sovereignty  by  the  political  power  of  the  Government.  In 
other  words,  by  the  law  of  nations,  dominion  of  new  territory 
may  be  acquired  by  discovery  and  occupation,  as  well  as  by  ces- 
sion or  conquest. 

In  the  case  of  United  States  vs.  Eogers,  150  U.  S.,  249,  37  Law 
Ed.,  page  1071,  the  Supreme  Court  held  that  the  term  "high 
seas,"  as  used  in  old  Section  5346,  is  applicable  to  the  open  un- 
enclosed waters  of  the  Great  Lakes,  between  which  the  Detroit 
River  is  a  connecting  stream;  and  that  Court,  in  the  same  case, 
also  held  that  a  vessel  is  deemed  part  of  the  territory  of  the 
country  to  which  she  belongs,  and  that  the  Courts  of  the  United 
States  have  jurisdiction,  under  L^nited  States  Revised  Statutes 
5346,  to  try  a  person  for  assault  with  a  dangerous  weapon,  com- 
mitted on  a  vessel  belonging  to  a  citizen  of  the  United  States. 
when  such  vessel  is  in  the  Detroit  River,  out  of  the  jurisdiction 
of  any  particular  State,  and  within  the  territorial  limits  of  the 
Dominion  of  Canada.  This  decision  seems  to  overrule  the  case  of 
United  States  vs.  Rogers,  in  the  46  Federal,  page  1 ,  and  the  case 
of  ex  parte  Byers,  32  Federal,  404,  where  the  Court  denied  a  like, 
jurisdiction. 

It  is  determined,  in  United  States  vs.  Peterson,  64  Federal, 
145,  that  the  District  Court  of  the  Eastern  District  of  Wiscon- 
sin has  no  jurisdiction  of  an  indictment  for  an  assault  committed 
on  a  vessel  on  Lake  Huron,  within  the  boundary  of  the  jurisdic- 
tion of  the  Eastern  District  of  Michigan.  In  other  words,  the  in- 
dictment should  have  been  prosecuted  in  Michigan,  instead  of 
Wisconsin,  and  Judge  Seaman  reviews  the  Byers  ease  and  the 
Rogers  case,  cited  supra. 

In  Jones  vs.  United  States,  137  U.  S.  202,  34  Law  Ed.,  691,  the 
Supreme  Court  maintains  the  constitutionality  of  jurisdiction  by 
discovery,  and  incidentally  Section  5570  of  the  Old  Code,  and. 
therefore,  the  fourth  division  of  the  present  section.  The  Court 
held  in  that  case,  that, 


ADMIEALTY,   MARITIME,    ETC.  315 

"All  courts  of  justice  are  bound  to  take  judicial  notice  of  the 
territorial  extent  of  the  jurisdiction  exercised  by  the  Government 
whose  laws  they  administer,  or  of  its  recognition  or  denial  of  the 
sovereignty  of  a  foreign  power,  as  appearing  from  the  public 
acts  of  the  legislature  and  executive,  although  those  acts  are  not 
formally  put  in  evidence,  nor  in  accord  with  the  pleadings. ' ' 
And  for  this  purpose  of  judicially  knowing,  the  judges  may  re- 
fresh their  memory  and  inform  their  conscience  from  such  sources 
as  they  may  deem  most  trustworthy. 

Under  the  authority  of  the  United  States  vs.  Battle,  154  Fed- 
eral, 540,  which  was  an  indictment  for  murder,  alleged  to  have 
been  committed  on  a  plot  of  ground  in  the  city  of  Macon,  Georgia, 
which  had  been  conveyed  to  the  United  States  for  the  erection  of 
a  post-office  and  Federal  Court  building,  over  which  territory  the 
State  had  surrendered  jurisdiction,  reserving  the  right  to  serve 
process  and  apprehend  offenders  there,  that  it  is  not  necessary  in 
the  indictment  to  plead  the  act  of  the  General  Assembly  or  Legis- 
lature, because  that  is  the  general  law,  which  it  is  presumed  not 
only  the  Court,  but  the  defendant,  knew;  nor  is  it  necessary  to 
plead  the  title  of  the  Government  in  the  indictment.  The  alle- 
gation that  the  crime  was  maliciously,  unlawfully,  and  feloniously 
done,  with  the  other  ingredients  of  the  offense,  is  sufficient.  This 
case  was  affirmed  in  Battle  vs.  United  States,  209  U.  S.,  page  36, 
52  Law  Ed.,  page  671. 

§  301.  Murder. — The  old  Statute  5339  gave  no  definition  of  the 
crime  of  murder,  and  thus  the  Courts  were  driven  to  the  Common 
Law  for  such  definition.  Now  Section  273,  however,  defines 
murder,  and  somewhat  enlarges  the  Common  Law  definition,  and 
appropriates  many  of  the  terms  of  the  statutes  of  a  large  major- 
ity of  the  various  states,  and  such  section  reads  as  follows : 

' '  Sec.  273.  ]\Iurder  is  the  unlawful  killing  of  a  human  being 
with  malice  aforethought.  Every  murder  perpetrated  by  poison, 
lying  in  wait,  or  any  other  kind  of  wilful,  deliberate,  malicious, 
and  premeditated  killing;  or  committed  in  the  perpetration  of, 
or  attempt  to  perpetrate,  any  arson,  rape,  burglary,  or  robbery ; 
or  perpetrated  from  a  premeditated  design  unlawfully  and  ma- 
liciously to  effect  the  death  of  any  human  being  other  than  him 
who  is  killed,  is  murder  in  the  first  degree.  Any  other  murder 
is  murder  in  the  second  degree." 

The  Common  Law  definition  of  murder  was. 


316  ADMIRALTY,   MARITIME,   ETC. 

"Murder  is  where  a  person  of  sound  memory  and  discretion, 
unlawfully  and  feloniously  kills  any  human  being  in  the  peace 
of  the  sovereign,  with  malice  prepense,  or  aforethought,  express 
or  implied." 

Mr.  Bishop,  in  Volume  11.,  of  his  New  Criminal  Law,  treats  of 
this  and  other  definitions  of  murder,  setting  forth  the  definitions 
used  by  Lord  Coke,  as  follows : 

"Murder  is  when  a  man  of  sound  memory  and  of  the  age  of 
discretion,  unlawfully  Icilleth,  within  any  county  of  the  realm, 
any  reasonable  creature  in  rerum  natura  under  the  King's  peace, 
with  malice  aforethought,  either  expressed  by  the  party,  or  im- 
plied by  law,  so  as  the  party  wounded  or  hurt,  etc.,  die  of  the 
wound  or  hurt,  etc.,  within  a  year  and  a  day  after  the  same,'' 
and  Lord  Mansfield,  namley  : 

"Murder  is  where  a  man  of  sound  sense,  unlawfully  killeth 
another  of  malice  aforethought,  either  express  or  implied," 
and  continues  by  saying  that  a  complete  definition  is  impossible, 
but  that  it  must  include  an  understanding  of  the  term  "malice 
aforethought,"  which  term  means  an  intent  to  take  life  without 
excuse. 

Judge  Maxey,  in  United  States  vs.  Lewis,  111  Federal,  630, 
said : 

"Malice,  when  attempted  to  be  defined,  has  been  necessarily 
given  a  more  comprehensive  meaning  than  enmity  or  illwill  or 
revenge,  and  has  been  extended  so  as  to  include  all  those  states 
of  mind  under  which  the  killing  of  a  person  takes  place  without 
any  cause  which  will  in  law  justify  or  excuse  or  extenuate  the 
homicide.  Mc  Coy  vs.  State,  25  Texas,  39.  Malice,  as  applied 
to  the  offense  of  murder,  need  not  denote  spite  or  malevolence, 
hatred  or  illwill,  to  the  person  killed,  nor  that  the  slayer  killed 
his  victim  in  cold  blood,  as  with  settled  design  and  premedita- 
tion. Such  a  killing  would,  it  is  true,  be  murder ;  but  malice,  as 
essential  to  the  crime  of  murder,  has  a  more  extended  meaning. 
A  killing  flowing  from  an  evil  design  in  general  may  be  of 
malice,  and  constitute  murder;  as,  a  killing  resulting  from  the 
dictates  of  a  wicked,  depraved,  and  malignant  spirit — a  heart 
regardless  of  social  duty  and  fatally  bent  upon  mischief — may 
be  of  malice,  necessarily  implied  by  law  from  the  fact  of  the 
killing,  without  lawful  excuse,  and  sufficient  to  constitute  the 
crime  of  murder,  although  the  person  killing  may  have  had  no 
spite  or  illwill  against  the  deceased.  Malice,  as  thus  described, 
is  either  express  or  implied.  Express  malice  is  where  one  with 
a  sedate  and  deliberate  mind,  and  formed  design,  doth  kill  an- 


ADMIRALTY,   MARITIME,   ETC.  317 

other,  which  formed  design  is  evidenced  by  external  circmn- 
•stanees,  discovering  that  inward  intention ;  as,  lying  in  wait,  an- 
tecedent menaces,  former  grudges,  and  concerted  schemes  to  do 
bodily  harm.  It  rarely,  if  ever,  occurs  that  express  malice  is 
proved  upon  the  trial  of  a  case.  The  existence  or  non-existence 
of  malice  is  a  matter  to  be  determined  by  the  jury,  from  a  con- 
sideration of  all  the  facts  in  evidence.  The  proof  of  homicide,  as 
necessarily  involving  malice,  must  .show  the  facts  under  which 
the  killing  was  effected,  and  from  the  whole  facts  and  circum- 
stances surrounding  the  l^illing,  the  jury  infers  malice  or  its 
absence.  INIalice,  in  connection  with  the  crime  of  killing,  is  but 
another  name  for  a  certain  condition  of  a  man 's  heart  or  mind ; 
and  as  no  one  can  look  into  the  heart  or  mind  of  another,  the 
only  way  to  decide  upon  its  condition  at  the  time  of  the  killing, 
is  to  infer  it  from  the  surrounding  facts,  and  that  inference  is 
one  of  fact  for  the  jury.  'Jordan  vs.  State,  10  Texas,  492;  3 
Russell  on  Crime,  sixth  edition,  pages  1  and  2 ;  Stevenson  vs. 
United  States,  162  U.  S.,  320,  40  Law  Ed.,  983;  Wallace  vs.  Uni- 
ted States,  162  U.  S.,  476,  40  Law  Ed.,  1043.'  The  malice  which 
distinguishes  the  crime  of  murder  must  be  aforethought.  It  im- 
plies premeditation — a  prior  intent  to  do  the  act.  It  may  have 
existed  but  for  a  moment — an  inappreciably  brief  period  of  time, 
or  longer.  No  limit  has  been,  or  can  be,  fixed  as  to  its  duration. 
If  it  in  fact  exist  for  any  period,  however  brief,  the  killing  would 
be  murder ;  but  in  malice  so  wanting,  the  homicide  could  not  be 
of  a  higher  grade  than  manslaughter." 

In  Battle  vs.  United  States,  209  U.  S.,  36,  52  Law  Ed.,  670,  the 
Supreme  Court  affirmed  the  refusal  of  the  trial  court  to  give  re- 
quested instructions  upon  the  law  of  justifiable  homicide  and  in- 
voluntary homicide,  when,  according  to  the  testimony  of  the  ac- 
cused, the  death  was  due  to  an  accident,  and  according  to  all 
the  other  evidence,  the  death  was  intentional  and  unjustified. 

In  considering  the  cases  that  are  hereafter  cited,  it  will  be 
borne  in  mind  that  the  original  Federal  Statute,  under  which  the 
cases  arose,  contained  no  provision  for  murder  in  the  second  de- 
gree ;  in  other  words,  the  two  degrees  of  homicide  Avere  murder 
and  manslaughter. 

By  the  Common  Law,  both  time  and  place  were  required  to  be 
alleged.  It  is  necessary  that  it  should  appear  that  the  death 
transpired  within  a  year  and  a  day  after  the  stroke,  and  the 
place  of  the  death  equally  with  that  of  the  stroke,  had  to  be 
stated  to  show  jurisdiction  in  the  Court.     The  controlling  ele- 


318  ADMIEALTY,    MARITIME,    ETC. 

nient  which  distinguishes  the  guilt  of  the  assailant  from  a  com- 
mon assault  was  the  death,  within  a  year  and  a  day,  and  also 
within  the  same  jurisdiction.  Ball  vs.  United  States,  140  U.  S., 
]36,  35  Law  Ed.,  384.  So  far  as  the  present  statute  is  concerned, 
there  are  no  differences  upon  this  point  between  it  and  the  old 
Statute,  upon  which  the  Ball  decision  was  rendered  and  the  Com- 
mon Law  rules  with  reference  to  these  matters  must,  therefore, 
be  observed  imder  the  new  statute,  in  both  pleading  and  proving 
the  offense.  In  the  case  of  United  States  vs.  Guiteau,  reported  in 
1  Mackey,  498,  the  Supreme  Court  of  the  District  of  Columbia 
affirmed  a  conviction,  even  though  the  shot  was  fired  in  the  Dis- 
trict of  Columbia  and  President  Garfield  died  in  Maryland, 
such  affirmance  being  based  upon  the  absorption  of  the  latest 
English  statute  by  Maryland,  in  1801,  which,  to  correct  the 
original  technicality  of  the  Conniion  Law,  permitted  prosecution 
in  either  the  realm  of  the  stroke  or  the  realm  of  the  death.  Sec- 
tion 731  of  the  Federal  statutes,  which  allows  the  prosecution  of 
an  offense  against  the  United  States  in  either  the  county  in 
which  it  was  begun  or  in  the  county  in  which  it  was  completed, 
was  held  by  the  Supreme  Court  in  the  Ball  case,  even  if  applica- 
ble to  the  crime  of  murder,  not  to  apply  if  the  stroke  were  given 
in  one  district  and  the  death  ensued  in  some  other  country  than 
the  United  States.  In  St.  Clair  vs.  United  States,  154  U.  S., 
134,  38  Law  Ed.,  936,  the  Court  sustained  a  description  in  an 
indictment  with  reference  to  the  locality  of  the  offense,  when  it 
showed  that  it  was  committed  on  board  of  an  American  vessel  on 
the  high  seas,  within  the  jurisdiction  of  the  Court  and  the  ad- 
miralty and  maritime  jurisdiction  of  the  United  States,  and  not 
within  the  jurisdiction  of  any  particular  State. 

§  302.  Verdict. — Under  the  Federal  practice,  the  Court  may 
sentence  the  defendant  to  a  manslaughter  punishment  and  enter 
a  judgment  for  manslaughter,  upon  a  verdict  of  guilty  of  mur- 
der, because  the  conviction  of  the  higher  offense  includes  the 
lower.    LTnited  States  vs.  Linnier,  125  Federal,  83. 

The  29  Statute  at  Large,  487,  Act  of  January  25,  1897,  pro- 
vides that  in  all  cases  where  the  accused  is  found  guilty  of  mur- 
der or  of  rape,  the  jury  may  qualify  their  verdict  by  adding 
thereto,  "without  capital  punishment";  and  whenever  the  jury 


ADMIEALTY,   MARITIME,    ETC.  319 

shall  return  a  verdict  qualified  as  aforesaid,  the  person  convicted 
shall  be  sentenced  to  imprisonment  at  hard  labor  for  life.  This 
Act  was  reviewed  and  applied  as  being  permissible  in  the  case 
of  Winston  vs.  United  States,  172  Federal,  304,  43  Law  Ed., 
456 ;  and  this  though  the  statute  provides  a  punishment  of  death. 
Section  275  of  the  New  Code. 

§  303.  Manslaughter. — The  old  manslaughter  statute,  Section 
5341,  is  so  changed  by  new  Section  274  as  to  include  the  practical 
elements  of  the  Common  Law  definition  of  manslaughter  and  the 
statutes  of  many  of  the  States,  and  reads  as  follows : 

' '  Sec.  274.  ]\Ianslaughter  is  the  unlawful  killing  of  a  human 
being  without  malice.    It  is  of  two  kinds : 

"First.  Voluntary — upon  a  sudden  quarrel  or  heat  of  pas- 
sion. 

"Second.  Involuntarj^ — in  the  commission  of  an  unlawful 
act  not  amounting  to  a  felony,  or  in  the  commission  of  a  lawful 
act  which  might  produce  death,  in  an  imlawful  manner,  or  with- 
out due  caution  and  circumspection." 

At  Common  Law,  voluntary  manslaughter  was  the  unlawful 
and  intentional  killing  of  another  without  malice  on  sudden 
quarrel  or  in  heat  of  passion.  Bishop,  in  his  New  Criminal  Law, 
second  volume,  page  425.  cites  several  definitions,  and  notes 
Hawkins'  definition,  which  was  this:  homicide  against  the  life 
of  another,  amounting  to  felony,  is  either  with  or  without  malice. 
That  which  is  without  malice  is  called  manslaughter,  or  some- 
times chance-medley ;  by  which  we  understand  such  killing  as 
happens  either  on  a  sudden  quarrel  or  in  the  commission  of  an 
unlawful  act,  without  any  deliberate  intention  of  committing  any 
mischief  at  all.    Mr.  Bishop  proposes  a  new  definition,  as  follows : 

"IManslaughter  is  any  such  dangerous  act  or  omission,  felon- 
iously done  or  suffered  contrary  to  one's  legal  duty,  as  results 
in  the  death  of  a  human  being,  within  a  year  and  a  day." 
But  whatever  may  have  been  the  original  Common  Law  defini- 
tion, the  statute  now  rnider  discussion  fixes  and  defines  just  what 
shall  be  manslaughter  in  the  Federal  jurisdiction.  An  interest- 
ing expression  of  the  Supreme  Court,  in  Anderson  vs.  L^nited 
States,  170  U.  S.,  510,  42  Law  Ed.,  1126,  will  be  of  value  here: 

"The  law,  in  recognition  of  the  frailty  of  human  nature,  re- 
gards a  homicide  committed  under  the  influence  of  sudden  pas- 
sion or  in  hot  blood,  produced  by  adequate  cause,  and  before  a 


320  ADMIRALTY,    MARITIME,   ETC. 

reasonable  time  has  elapsed  for  the  blood  to  cool,  as  an  offense 
of  a  less  heinous  character  than  murder;  but  if  there  be  sufficient 
time  for  the  passion  to  subside,  and  shaken  reason  to  resume  her 
sway,  no  such  distinction  can  be  entertained ;  and  if  the  circum- 
stances showed  a  killing  with  deliberate  mind  and  formed  design, 
with  comprehension  of  the  act  and  determniation  to  perform  it, 
the  elements  of  self-defense  being  wanting,  the  act  is  murder. 
Nor  is  the  presumption  of  malice  negatived  by  previous  provoca- 
tion, having  no  casual  connection  with  the  murderous  act.  or 
separated  from  it  by  such  an  interval  of  time  as  gives  reasonable 
opportunity  for  the  excess  of  fury  to  moderate. " 

In  other  words,  in  manslaughter,  malice  is  presumed  to  be  absent 
or  Avantiug,  and  the  act  is  imputed  to  the  infirmity  of  human 
nature,  and  the  punishment  is,  therefore,  proportionately  lenient. 
The  Circuit  Court  of  Appeals  for  the  Fifth  Circuit,  in  the 
case  of  Roberts  vs.  United  States,  126  Federal,  897,  speaking 
through  Chief  Justice  Pardee,  affirmed  a  manslaughter  charge 
by  District  Judge  Meek,  and  his  definition  thereof,  which  was  as 
follows : 

''In  the  definition  of  manslaughter  contained  in  the  statute, 
the  killing  must  be  done  unlawfully  and  wilfully.  The  term 
'unlawfully.'  as  here  used,  means  without  legal  excuse.  The  term 
'wilfully'  here  means  done  wrongfully,  with  evil  intent.  It 
means  any  act  which  a  person  of  reasonable  loiowledge  and  abil- 
ity must  know  to  be  contrary  to  duty." 

The  statute,  it  will  be  noted,  rehabilitates  voluntary  and  in- 
voluntary manslaughter,  being  the  same  divisions  originally  rec- 
ognized by  the  Common  Law. 

§  304.  Punishment  for  Murder  and  Manslaughter. — Section  275 
of  the  New  Code,  which  displaces  old  Sections  5339  and  5343,  is 
as  follows: 

' '  Sec.  275.  Every  person  guilty  of  murder  in  the  first  degree 
shall  suffer  death.  Every  person  guilty  of  murder  in  the  second 
degree  shall  be  imprisoned  not  less  than  ten  years  and  may  be 
imprisoned  for  life.  Every  person  guilty  of  voluntary  man- 
slaughter shall  be  imprisoned  not  more  than  ten  years.  Every 
person  guilty  of  involuntary  manslaughter  shall  be  imprisoned 
not  more  than  three  years,  or  fined  not  exceeding  one  thousand 
dollars,  or  both." 

§  305.  Assault  with  Intent  to  Commit  Murder,  Rape,  Robbery, 
Etc. — A  part  of  the  provisions  of  old  Statute  5346  are  included 


ADMIRALTY,   MARITIME,    ETC.  321 

in  new  Section  276,  which  is  very  broad,  and  which  is  in  the 
following  words : 

"Sec.  276.  Whoever  shall  assault  another  with  intent  to  com- 
mit murder,  or  rape,  shall  be  imprisoned  not  more  than  twenty 
years.  AVhoever,  shall  assault  another  with  intent  to  commit  any 
felony,  except  murder,  or  rape,  shall  be  fined  not  more  than  three 
thousand  dollars,  or  imprisoned  not  more  than  ten  years,  or  both. 
Whoever,  with  intent  to  do  bodily  harm,  and  without  just  cause  or 
excuse,  shall  assault  another  with  a  dangerous  weapon,  instru- 
ment, or  other  thing,  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both.  Who- 
ever shall  unlawfully  strike,  beat,  or  wound  another,  shall  be 
fined  not  more  than  five  hundred  dollars,  or  imprisoned  not 
more  than  six  months,  or  both.  Whoever  shall  unlawfully  assault 
another,  shall  be  fined  not  more  than  three  hundred  dollars,  or 
imprisoned  not  more  than  three  months,  or  both. 

In  United  States  vs.  Barnaby,  51  Federal,  20,  the  defendant 
was  charged  in  the  indictment  with  an  assault  with  intent  to 
commit  murder,  and  the  Court  held  that  the  indictment  was  in- 
sufficient, where  it  merely  charged  that  the  defendant  made  an 
assault  with  a  knife  upon  a  person  named,  with  intent  him  to 
kill,  wilfully  and  feloniously,  and  of  his  malice  aforethought, 
without  disclosing  the  character  of  the  knife,  or  averring  that  he 
struck  him  with  it,  or  inflicted  any  wound  having  a  tendency  to 
produce  death. 

§  306.  Attempt  to  Commit  Murder  or  Manslaughter. — Section 
5342  of  the  old  statutes  is  replaced  by  Section  277  of  the  New 
Code,  in  the  following  words : 

"Sec.  277.  Whoever  shall  attempt  to  commit  murder  or  man- 
slaughter, except  as  provided  in  the  preceding  section,  shall  be 
fined  not  more  than  one  thousand  dollars  and  imprisoned  not 
more  than  three  years." 

§  307.  Rape. — Section  5343  of  the  old  statutes  becomes  Section 
278  of  the  New  Code,  in  the  following  words : 

' '  Sec.  278.  Whoever  shall  commit  the  crime  of  rape  shall  suf- 
fer death." 

Under  the  Common  Law,  rape  is  the  having  of  carnal  knowl- 
edge, by  a  man  of  a  woman,  forcibly  and  against  her  will.  A 
corrected  definition,  given  by  Mr.  Bishop,  is, 

"Rape  is  the  having  of  unlawful  carnal  knowledge,  by  a  man 
of  a  woman,  forcibly,  where  she  does  not  consent," 


322  ADMIRALTY,   MARITIME,   ETC. 

The  difference  between  the  use  of  the  words,  "where  she  does 
not  consent"  and  the  words,  "against  her  will,"  is  treated  by 
Lord  Campbell  in  the  following  manner : 

' '  The  question  is,  What  is  the  real  definition  of  rape, — whether 
it  is  the  ravishing  of  a  woman  against  her  will,  or  without  her 
consent  ?  If  the  former  is  the  correct  definition,  the  crime  is  not, 
in  this  case,  proved;  if  the  latter,  it  is  proved.  Camplin's  case 
seems  to  me  really  to  settle  what  the  proper  definition  is,  and  the 
decision  in  that  case  rests  upon  the  authority  of  an  Act  of  Parlia- 
ment. The  statute  of  Westminster  2,  C.  34,  defines  the  crime  to 
be  where  a  man  do  ravish  a  woman,  married,  maid,  or  other, 
where  she  did  not  consent,  neither  before  nor  after.  We  are 
bound  by  that  definition,  and  it  was  adopted  in  Camplin's  case, 
acted  upon  in  Ryan 's  case,  and  subsequently  in  a  case  before  my 
Brother  Willes.  It  would  be  monstrous  to  say  that  if  a  drunken 
woman,  returning  from  market,  lay  do"v\Ti  and  fall  asleep  by  the 
roadside,  and  a  man,  by  force,  had  connection  with  her  whilst 
she  was  in  a  state  of  insensibility,  and  incapable  of  giving  con- 
sent, he  would  not  be  guilty  of  rape." 

The  concluding  illustration  of  the  great  Chief  Justice  was  held 
not  to  be  rape,  in  P.  vs.  Quin,  50  Barb.,  128,  but  was  held  to  be 
rape  in  C.  vs.  Burk.  105  Mass.,  376. 

§  308.  Having  Carnal  Knowledge  of  Female  Under  Sixteen. — 
Section  279  of  the  New  Code  reads  as  follows: 

"Sec.  279.  Whoever  shall  carnally  and  unlawfully  know  any 
female  under  the  age  of  sixteen  years,  or  shall  be  accessory  to 
such  carnal  and  unlawful  knowledge  before  the  fact,  shall,  for  a 
first  offense,  be  imprisoned  not  more  than  fifteen  years,  and  for  a 
subsequent  offense  be  imprisoned  not  more  than  thirty  years." 

§  309.  Seduction  of  Female  Passenger  on  Vessel. — The  substance 
of  Section  5349  becomes  new  Section  280,  which  reads  as  follows : 

"Sec.  280.  Every  master,  officer,  seaman,  or  other  person 
employed  on  board  of  any  American  vessel  who,  during  the  voy- 
age, under  promise  of  marriage,  or  by  threats,  or  the  exercise  of 
authority,  or  solicitation,  or  the  making  of  gifts  or  presents,  se- 
duces and  has  illicit  connection  with  any  female  passenger,  shall 
be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  one  year,  or  both ;  but  subsequent  intermarriage  of  the 
parties  may  be  pleaded  in  bar  of  conviction." 

§  310.  Payment  of  Fine  to  Female  Seduced;  Evidence  Required; 
Limitation  on  Indictment. — Old  Sections  5350  and  5351  become 
new  Section  281  of  the  New  Code,  as  follows : 


ADMIEALTY,   MARITIME,   ETC.  323 

"Sec.  281.  When  a  person  is  convicted  of  a  violation  of  the 
section  last  preceding,  the  court  may,  in  its  discretion,  direct  that 
the  amoimt  of  the  fine,  when  paid,  be  paid  for  the  use  of  the 
female  seduced,  or  her  child,  if  she  have  any ;  but  no  conviction 
shall  be  had  on  the  testimony  of  the  female  seduced,  without 
other  evidence,  nor  imless  the  indictment  is  found  within  one 
year  after  the  arrival  of  the  vessel  on  which  the  offense  was 
committed  at  the  port  of  its  destination." 

.§311.  Punishment  for  Loss  of  Life  by  Misconduct  of  Officers, 
Ow'ners,  Charterers,  Etc.,  of  Vessels. — Old  Section  5314  is  greatly 
broadened  by  new  Section  282,  which  is  as  follows : 

"Sec.  282.  Every  captain,  engineer,  pilot,  or  other  person 
employed  on  any  steamboat  or  vessel,  by  whose  misconduct,  negli- 
gence, or  inattention  to  his  duties  on  such  vessel  the  life  of  any 
person  is  destroyed,  and  every  owner,  charterer,  inspector,  or 
other  public  officer,  through  whose  fraud,  neglect,  connivance, 
misconduct,  or  violation  of  law  the  life  of  any  person  is  de- 
stroyed, shall  be  fined  not  more  than  ten  thousand  dollars,  or 
imprisoned  not  more  than  ten  years,  or  both.  Provided,  That 
when  the  owTier  or  charterer  of  any  steamboat  or  vessel  shall  be 
a  corporation,  any  executive  officer  of  such  corporation,  for  the 
time  being  actually  charged  with  the  control  and  management 
of  the  operation,  equipment,  or  navigation  of  such  steamboat  or 
vessel,  who  has  knowingly  and  wilfully  caused  or  allowed  such 
fraud,  neglect,  connivance,  misconduct,  or  violation  of  law,  by 
which  the  life  of  any  person  is  destroyed,  shall  be  fined  not  more 
than  ten  thousand  dollars,  or  imprisoned  not  more  than  ten  years, 
or  both." 

The  term  "vessel"  was  construed  to  include  every  description 
of  water-craft,  or  other  artificial  contrivance  used  or  capable  of 
being  used  as  a  means  of  transportation  on  water,  in  the  case  of 
United  States  vs.  Holmes.  104  Federal,  884.  In  that  same  case, 
it  was  also  held  that  the  offense  named  in  the  statute  was  complete 
when  the  misconduct,  negligence,  or  inattention  in  the  navigation 
of  a  vessel  by  one  of  the  persons  named  resulted  in  the  loss  of  hu- 
man life,  and  that  the  indictment  thereimder  need  not  charge  a 
criminal  intent. 

In  United  States  vs.  Van  Schaick,  134  Federal,  592,  which  was 
affirmed  in  Van  Schaick  vs.  United  States,  159  Federal,  847,  it  was 
held  that  even  though  the  statute  could  not  reach  a  corporation 
OA\Tier  of  a  vessel,  yet  such  fact  did  not  affect  the  right  of  the  Gov- 


324  ADMIEALTY,   MARITIME,    ETC. 

ernment  to  prosecute  individuals  under  said  section,  who  aid  and 
abet  the  corporation  in  the  commission  of  the  crime;  and  the 
owner  of  a  steamship  who  fails  to  comply  with  the  statute  re- 
quiring it  to  be  equipped  with  life  preservers  and  proper  fire 
appliances,  either  by  supplying  none,  or  by  supplying  those  that 
are  unsuitable,  inefficient,  and  useless,  is  guilty  of  a  violation  of 
this  section,  provided  such  violation  results  in  the  death  of  a 
person. 

§  312.  Maiming. — Old  Statute  534:8  becomes  the  substance  of 
Section  283  of  the  New  Code,  as  follows: 

"Sec.  283.  Whoever,  with  intent  to  maim  or  disfigure,  shall 
cut,  bite,  or  slit,  the  nose,  ear,  or  lip,  or  cut  out  or  disable  the 
tongue,  or  put  out  or  destroy  an  eye,  or  cut  off  or  disable  a  limb 
or  any  member  of  another  person ;  or  whoever,  with  like  intent, 
shall  throw  or  pour  upon  another  person,  any  scalding  hot  water, 
vitriol,  or  other  corrosive  acid,  or  caustic  substance  whatever, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned 
not  more  than  seven  years,  or  both." 

§  313.  Robbery. — Section  5370  of  the  old  statutes  becomes  Sec- 
tion 284  in  the  New  Code,  in  the  following  words : 

"Sec.  284.  Whoever,  by  force  and  violence,  or  by  putting 
in  fear,  shall  feloniously  take  from  the  person  or  presence  of 
another  anything  of  value,  shall  be  imprisoned  not  more  than 
fifteen  years." 

§  314.  Arson  of  Dwelling  House. — Section  285  of  the  New  Code 
adds  the  new  element  of  destruction  by  explosives,  and  reduces 
the  maximum  penalty,  and  is  substituted  for  Section  5385  of 
the  old  statutes,  and  is  in  the  following  words : 

"Sec.  285.  Whoever  shall  wilfully  and  maliciously  set  fire  to, 
bum,  or  attempt  to  burn,  or  by  means  of  a  dangerous  explosive 
destroy  or  attempt  to  destroy,  any  dwelling  house,  or  any  store, 
barn,  stable,  or  other  building,  parcel  of  a  dwelling  house,  shall 
be  imprisoned  not  more  than  twenty  years." 

§315.  Arson  of  Arsenal,  Etc.;  Other  Buildings,  Etc. — Section 
286  of  the  New  Code  includes  many  things  not  enumerated  in 
old  Statute  5386,  and  is  in  the  following  words : 

"Sec.  286.  AVhoever  shall  maliciously  set  fire  to,  burn,  or  at- 
tempt to  bum,  or  by  any  means  destroy  or  injure,  or  attempt 
to  destroy  or  injure,  any  arsenal,  armory,  magazine,  rope-walk, 
ship-house,  warehoiLse,  blockhouse,  or  barrack,  or  any  store-house, 
barn,  or  stable,  not  parcel  of  a  dwelling  house,  or  any  other 


ADMIRALTY,   MARITIME,   ETC.  325 

building  not  mentioned  in  the  section  last  preceding,  or  any  ves- 
sel bnilt,  building,  or  imdergoing  repair,  or  any  light-house,  or 
beacon,  or  any  machinery,  timber,  cables,  rigging,  or  other  ma- 
terials or  appliances  for  building,  repairing,  or  fitting  out  vessels, 
or  any  pile  of  wood,  boards,  or  other  lumber,  or  any  militarj^ 
naval,  or  victualing  stores,  arms,  or  other  munitions  of  war,  shall 
be  fined  not  more  than  five  thousand  dollars  and  imprisoned  not 
more  than  twenty  years." 

The  teclmical  quashing  of  an  indictment  in  United  States  vs. 
Cardish,  143  Federal,  640,  growing  out  of  the  necessity  of  the 
Common  Law  definition  of  the  word  ''arson"  controlling  in  the 
Federal  prosecution,  would  not  be  possible  under  this  new  sec- 
tion, for  the  reason  that  the  destruction  by  fire,  as  enumerated  in 
the  new  section,  is  not  limited  to  the  technical  meaning  of  the 
word  "arson"  at  Common  Law. 

§  316.  Larceny. — Section  287  of  the  New  Code,  wiiich  takes 
the  place  of  old  Section  5356,  is  patterned  after  the  legislation 
of  the  various  States  which  recognize  two  different  punishments, 
to  be  graded  by  the  value  of  the  articles  stolen. 

"Sec.  287.  Whoever  shall  take  and  carry  away,  with  intent 
to  steal  or  purloin,  any  personal  property  of  another,  shall  be 
punished  as  follows :  If  the  property  taken  is  of  a  value  ex- 
ceeding fifty  dollars,  or  is  taken  from  the  person  of  another,  by 
a  fine  of  not  more  than  ten  thousand  dollars,  or  imprisonment 
for  not  more  than  ten  years,  or  both ;  in  all  other  cases,  by  a  fine 
of  not  more  than  one  thousand  dollars,  or  by  imprisonment  not 
more  than  one  year,  or  both.  If  the  property  stolen  consists  of 
any  evidence  of  debt,  or  other  written  instrument,  the  amoimt  of 
money  due  thereon,  or  secured  to  be  paid  thereby,  and  remaining 
imsatisfied,  or  which  in  any  contingency  might  be  collected 
thereon,  or  the  value  of  the  property  the  title  to  which  is  sho^\Ti 
thereby,  or  the  sum  which  might  be  recovered  in  the  absence 
thereof,  shall  be  deemed  to  be  the  value  of  the  property  stolen. ' ' 

§  317.  Receiving,  Etc.,  Stolen  Goods.— Section  5357  of  the  Old 
Code  is  broadened  by  new  Section  288,  so  as  to  include  the  receiv- 
ing of  money  which  has  been  embezzled,  and  by  authorizing  the 
trial  of  the  receiver  of  such  money  before  the  trial  of  the  prin- 
cipal offender;  the  section  reading  as  follows: 

"Sec.  288.  Whoever  shall  buy,  receive,  or  conceal,  any  mon- 
ey, goods,  bank  notes,  or  other  thing  w-hich  may  be  the  subject  of 
larceny,  which  has  been  feloniously  taken,  stolen,  or  embezzled, 
from  any  other  person,  knowing  the  same  to  have  been  so  taken, 


1326  ADMIEALTY,    MARITIME.    ET(1 

stolen,  or  embezzled,  shall  be  fined  not  more  than  one  thousand 
dollars  and  imprisoned  not  more  than  three  years;  and  such 
person  may  be  tried  before  or  after  the  conviction  of  the  prin- 
cipal offender." 

In  Bise  vs.  United  States,  144  Federal,  374,  the  Court  held 
that  in  a  prosecution  under  old  section,  it  was  not  essential  to 
allege  in  the  indictment  that  the  property  was  received  without 
the  consent  of  the  owner,  or  with  intent  to  deprive  him  of  its 
use  and  benefit;  the  criminal  intent  and  evil  purpose  of  the 
receiver  being  sufficiently  alleged  where  his  act  is  characterized 
as  unlawful  and  felonious. 

§  318.  Laws  of  State  Adopted  for  Punishing  Wrongful  Acts, 
Etc. — Re-written,  broadened,  and  amplified,  old  Section  5391  be- 
comes new  Section  289,  in  the  following  words: 

"Sec.  289.  Whoever,  within  the  territorial  limits  of  any 
State,  organized  Territory,  or  District,  but  within  or  upon  any  of 
the  places  now  existing,  or  hereafter  reserved  or  acquired,  de- 
scribed in  section  two  hundred  and  seventy -two  of  this  act,  shall 
do  or  omit  the  doing  of  any  act  or  thing  which  is  not  made  penal 
by  any  law  of  Congress,  but  which  if  committed  or  omitted 
within  the  jurisdiction  of  the  State,  Territory,  or  District  in 
which  such  place  is  situated,  by  the  laws  thereof  now  in  force 
would  be  penal,  shall  be  deemed  guilty  of  a  like  offense  and  be 
subject  to  a  like  punishment;  and  every  such  State,  Territorial, 
or  District  law  shall,  for  the  purpose  of  this  section,  continue  in 
force,  notwithstanding  any  subsequent  repeal  or  amendment 
thereof  by  any  such  State,  Territory,  or  District." 

This  is  one  of  the  most  useful  Federal  sections.  Under  it, 
petty  misdemeanors  and  other  offenses  not  enumerated  in  the 
Federal  Code,  U.  S.  vs.  Barnaby,  51  Federal,  page  20,  the  pun- 
ishment of  which,  however,  is  essential,  are  made  in  this  com- 
prehensive manner  Federal  offenses.  In  Franklin  vs.  United 
States,  decided  by  the  Supreme  Court  on  March  14,  1910,  that 
Court  re-affirmed  the  case  of  United  States  vs.  Paul,  6  Peters, 
141,  over  the  objection  made  to  the  constitutionality  of  the  sec- 
tion under  discussion,  resting  such  objection  upon  the  contention 
that  the  statute  would  authorize  State  governments  to  change 
penalties  for  Federal  offenses,  and  said : 

"In  United  States  vs.  Paul,  6  Peters,  141,  coming  here  on  cer- 
tificate of  division,  it  was  held  by  this  Court,  speaking  by  Chief 
Justice  Marshall,  that  the  effect  of  this  Section  (5391)  was  lim- 


ADMIRALTY,   MARITIME,   ETC.  327 

ited  to  the  laws  of  the  several  States  in  force  at  the  time  of  its 
enactment,  and  it  followed  by  this  Act,  Congress  adopted  for  the 
government  of  the  designated  places  under  the  exclusive  juris- 
diction and  control  of  the  United  States,  the  criminal  laws  then 
existing  in  the  several  States,  within  which  such  places  were  not 
displaced  by  specific  laws  enacted  by  Congress.  Section  2  of  the 
Act  of  July  seventh,  1898,  was  to  the  same  effect,  and,  moreover, 
by  express  language,  Congress  adopted  such  punishment  as  *the 
laws  of  the  State  in  which  such  place  is  situated  noiv  provide  for 
the  like  offense.'  There  is  plainly  no  delegation  to  the  State  of 
authority  in  any  way  to  change  the  criminal  laws  applicable  to 
the  places  over  which  the  United  States  has  jurisdiction. ' ' 

In  in  re  Kelly,  71  Federal,  545,  the  Court  held  that  a  cession 
to  the  general  Government  to  certain  lands  for  a  soldiers'  home, 
in  the  Act  giving  the  consent  of  the  State  to  purchase  of  such 
land,  does  not  confer  exclusive  jurisdiction,  and  that  upon  such 
lands  so  ceded  for  the  purpose  of  a  home  for  disabled  soldiers, 
the  criminal  laws  of  the  United  States,  which  apply  only  to 
places  within  their  exclusive  jurisdiction,  are  not  operative.  See 
also  United  States  vs.  Barnaby,  51  Federal,  20. 


CHAPTER  XIV. 

PIRACY  AND  OTHER  OFFENSES  UPON  THE  HIGH 

SEAS. 

§  319.  Generally. 

320.  Piracy  in  the  Code:   5368—290. 

321.  Maltreatment  of  Crew  by  Officers  of  Vessel:  5347—291. 

322.  Extradition  for  this  Offense:  New  Code,  321. 

323.  Inciting  Eevolt  or  Mutiny  on  Ship-Board:   5359—292, 

324.  Eevolt  and  Mutiny  on  Ship-Board:   5360—293. 

32.5.  Seaman  Laying  Violent  Hands  on  His  Commander:   5369 — 294. 

326.  Abandonment  of  Mariners  in  Foreign  Ports:   5363 — 295. 

327.  Conspiracy  to  Cast  Away  Vessel:   5364—296. 

328.  Plundering  Vessel,  Etc.,  in  Distress:   5358—297. 

329.  Attacking  Vessel  with  Intent  to  Plunder:   5361—298. 

330.  Breaking  and  Entering  Vessel,  Etc.:   5362—299. 

331.  Owner  Destroying  Vessel  at  Sea:   5365—300. 

332.  Other  Persons  Destroying  or  Attempting  to  Destroy  Vessel  at  Sea: 

5366  and  5367—301. 

333.  Eobbery  on  Shore  by  Crew  of  Piratical  Vessel:   5371—302, 

334.  Arming  Vessel  to  Cruise  Against  the  Citizens  of  the  United  States: 

5284—303. 

335.  Piracy  Under  Color  of  a  Foreign  Commission :   5373 — 304. 

336.  Piracy  by  Subjects  or  Citizens  of  a  Foreign  State:  5374 — 305. 

337.  Eunning  Away  With  or  Yielding  Up  Vessel  of  Cargo:   5383 — 306. 

338.  Confederating,  Etc.,  with  Pirates:   5384—307. 

339.  Sale   of   Arms   and  Intoxicants   Forbidden   in   Pacific   Islands:    32 

St.  L.,  33—308. 

340.  Offenses  Under  Preceding  Section  Deemed  on  High  Seas:  Act  Feb- 

ruary 14,   1902—309. 

341.  "Vessels  of  the  United  States"  Defined:  New  Code,  310. 

§  319.  Piracy  is  an  offense  against  the  international  law,  and 
as  such,  the  authorities  define  it  to  be  any  forcible  depredation 
on  the  high  seas,  perpetrated  in  general  hostility  to  manldnd,  for 
the  gain  or  other  private  ends  of  the  doers.  First  Kent's  Com- 
mentary, page  183,  defines  it  as  follows: 

"Piracy  is  robbery  or  a  forcible  depredation  on  the  high  seas, 
without  lawful  authority,  and  done  animo  furandi  and  in  the 

328 


PIRACY  AND   OTHER  OFFENSES  UPON  THE  HIGH  SEAS     329 

spirit  and  intention  of  universal  hostility.  It  is  the  same  offense 
at  sea  with  robbery  on  land;  and  all  the  writers  on  the  law  of 
nations  and  on  the  maritime  law  of  Europe  agree  in  this  defini- 
tion of  piracy." 

Lord  Coke  said  that  a  pirate  is  a  rover  and  a  robber  upon  the 
sea. 

The  statutes  of  the  United  States  make  piracy  a  Federal  of- 
fense. The  original  punishment  w^as  by  death.  The  Act  of 
January  fifteenth,  1897,  29  Statute  at  Large,  487,  substituted 
life  imprisonment. 

§  320.  Piracy. — Section  290  of  the  New  Code  takes  the  place 
of  Section  5368  of  the  Old  Code,  which  had  been  amended  as 
before  mentioned,  and  Section  290  reads  as  follows: 

"Sec.  290.  AVhoever.  on  the  high  seas,  commits  the  crime  of 
piracy  as  defined  by  the  law  of  nations,  and  is  afterwards 
brought  into  or  found  in  the  United  States,  shall  be  imprisoned 
for  life." 

Some  cases  of  the  Common  Law  doctrine,  applied  either  in  the 
construction  of  the  statutes  or  otherwise,  are  the  "Marinna 
Flora,"  11  Wheat.,  1;  U.  S.  vs.  Gilbert,  2  Sumn.,  19;  U.  S.  vs. 
Tully,  1  Gallis,  247;  the  "Antelope,"  10  Wheat.,  66;  U.  S.  vs. 
Jones,  3  Wash.,  C.  C,  209;  United  States  vs.  Pirates,  5  Wheat., 
184 ;  U.  S.  vs.  Palmer,  3  AVheat.,  610 ;  U.  S.  vs.  Smith,  5  Wheat., 
153;  U.  S.  vs.  Klintock,  5  Wlieat.,  144. 

In  the  case  of  Ambrose  Light,  25  Federal,  408,  Judge  Brown 
said: 

"Accordingly,  the  definitions  of  piracy,  aside  from  statutory 
piracy,  fall  naturally  into  two  classes,  according  as  the  offense  is 
viewed  more  especially  as  it  affects  the  rights  of  nations,  or  is 
amenable  to  criminal  punishment  under  the  municipal  law.  The 
Common  Law  jurists  and  our  standard  authorities  on  Criminal 
Law,  define  piracy  as  robbery  on  the  high  seas;  or  such  acts  of 
violence  or  felonious  taking  on  the  high  seas  as  upon  land  would 

constitute  the  crime  of  robbery The  majority  of  authorities 

on  international  law.  however,  define  it  substantially  as  Wheaton 
defines  it,  namely:  as,  'the  offense  of  depredating  on  the  high 
seas  without  being  authorized  by  any  sovereign  State,  or  with 
commissions  from  different  sovereigns  at  war  with  each  other.'  " 
The  reading  of  our  statute  sends  us  for  a  definition  of  the  of- 


330     PIRACY  AND   OTHER   OFFENSES  UPON  THE   HIGH  SEAS 

fense  to  this  last  authority,  and  it  may  be  accepted  as  the  correct 
definition. 

§  321.  Maltreatment  of  Crew  by  OiScers  of  Vessel. — Old  Section 
53J:7,  by  eliminating  the  word  "American"  before  the  word 
"vessel,"  and  adding  the  words  "of  the  United  States"  after  the 
word  "vessel,"  becomes  new  Section  291,  as  follows: 

"Sec.  291.  "Whoever,  being  the  master  or  officer  of  a  vessel 
of  the  United  States,  on  the  high  seas,  or  on  any  other  waters 
Avithin  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  beats,  wounds,  or  without  .justifiable  cause,  imprisons  any 
of  the  crew  of  such  vessel,  or  withholds  from  them  suitable  food 
and  nourishment,  or  inflicts  upon  them  any  cruel  and  unusual 
punishment,  shall  be  fined  not  more  than  one  thousand  dollars, 
or  imprisoned  not  more  than  five  years,  or  both.  Nothing  herein 
contained  shall  be  construed  to  repeal  or  modify  section  forty-six 
hundred  and  eleven  of  the  Eevised  Statutes." 

Originally,  this  Act  included  the  words  "malice,  hatred,  or 
revenge";  and  while  these  words  were  in  the  statute,  many  de- 
cisions were  rendered  upon  a  state  of  facts  showing,  or  failing 
to  show,  such  condition  of  mind,  but  which  decisions  would  not 
be  at  all  helpful  under  the  statute  in  its  present  shape. 

Under  the  authority  of  the  United  States  vs.  Trice,  30  Federal, 
490,  anyone  who,  by  authority,  exercises  the  function  of  control 
over  the  actions  of  the  crew,  or  any  part  of  it,  by  giving  direction 
to  their  work,  is  an  officer  within  the  meaning  of  the  Revised 
Statutes  of  the  United  States,  and  is  liable  to  the  penalty,  if  he 
beat  or  wound  one  of  the  crew.  Thus,  upon  a  state  of  facts 
which  showed  that  one  of  the  roust-abouts  belonging  to  the  crew 
of  a  boat  was  set  over  the  rest  as  captain  of  the  watch,  with 
power  to  direct  their  work  and  demand  obedience  to  his  orders, 
and  while  so  acting,  beat  and  wounded  one  of  the  crew  so  under 
his  command,  he  was  an  ofKcer  within  the  meaning  of  the  statute, 
and  amenable  to  its  penalty. 

Since  the  abolition  of  corporal  punishment  by  the  old  Section 
4611  in  the  1878  Statutes,  a  pimishment  by  flogging  is  without 
"justifiable  cause."  United  States  vs.  Cutler,  1  Curt.,  501,  25 
Federal  Case  No.  14910.  In  line  with  the  Trice  case,  cited  svpra, 
is  United  States  vs.  Taylor,  2  Sumn.,  584,  28  Federal  Case  No. 
16442.     It  is  needless  to  say  in  this  connection  that  this  statute 


PIRACY  AND   OTHER  OFFENSES  UPON  THE  HIGH  SEAS     331 

protects  the  crew  of  a  United  States  vessel,  it  does  not  matter 
upon  what  waters  she  be  sailing,  and  where  the  offense  denounced 
by  the  statute  is  committed  on  board  such  a  vessel,  it  is  an  of- 
fense against  the  United  States,  though  the  vessel  be  in  a  harbor 
or  river  or  a  foreign  country.  United  States  vs.  Bennett,  3 
Hughes,  466,  24  Federal  Cases,  14574;  Roberts  vs.  Skoelfield,  20 
Federal  Cases  No.  11,917.  Under  the  authority  of  United  States 
vs.  Eeed,  86  Federal,  308,  the  captian  of  a  vessel  is  bound  to  ex- 
ercise the  same  care  to  discover  that  his  vessel  is  properly  pro- 
visioned when  he  undertakes  a  new  voyage,  after  having  had  dif- 
ficulty or  trouble  at  sea,  that  he  is  bound  to  observe  in  the  orig- 
inal provisioning  of  his  vessel  at  the  outset  of  the  voyage.  Sec- 
tions 4568  and  4612  of  the  old  statutes  provide  what  constitutes 
short  allowance  of  food,  etc.,  as  meant  by  the  statute  under  dis- 
cussion. This  section  comprises  four  different  offenses:  beating 
or  wounding;  imprisoning;  deprivation  of  suitable  food  and 
nourishment;  the  infliction  of  any  cruel  and  unusual  punish- 
ment. 

§  322.  Extradition  for  This  Offense. — It  was  decided  by  the 
Supreme  Court,  in  United  States  vs.  Ranschur,  that  one  who  had 
committed  an  offense  against  this  statute,  and  who  was  appre- 
hended in  a  foreign  country  and  extradited  upon  the  charge  of 
murder,  could  not  be  tried  in  this  country  under  an  indictment 
found  under  this  section,  even  though  the  identical  acts  relied 
upon  to  prove  the  charge  of  the  indictment  were  the  same  acts  as 
those  charged  to  have  been  relied  upon  for  the  charge  of  murder. 
The  Treaty,  the  Acts  of  Congress,  and  the  proceedings  by  which 
he  was  extradited,  clothe  him  with  the  right  to  exemption  from 
trial  for  any  other  offense  until  he  has  had  opportunity  to  return 
to  the  country  from  which  he  was  taken,  for  the  purpose  of  trial 
for  the  offense  specified  in  the  demand  for  his  surrender.  The 
the  country  which  surrendered  him. 

§  323.  Inciting  Revolt  or  Mutiny  on  Ship  Board. — Section  5359 
of  the  old  statutes  becomes  Section  292  of  the  New  Code,  without 
substantial  change,  except  that  the  words  "of  the  United 
States"  have  been  added  after  the  word  "vessel";  the  section 
now  reading  as  follows : 

"Sec.  292.     Whoever,  being  of  the  crew  of  a  vessel  of  the 


332     PIKACY  AND  OTHEE  OFFENSES  UPON  THE  HIGH  SEAS 

United  States,  on  the  high  seas,  or  on  any  other  waters  within  the 
admiralty  and  maritime  jurisdiction  of  the  United  States,  en- 
deavors to  make  a  revolt  or  mutiny  on  board  such  vessel,  or  com- 
bines, conspires,  or  confederates  with  any  other  person  on  board 
to  make  such  revolt  or  mutiny,  or  solicits,  incites,  or  stirs  up  any 
other  of  the  crew  to  disobey  or  resist  the  lawful  orders  of  the 
master  or  other  officer  of  such  vessel,  or  to  refuse  or  neglect  their 
proper  duty  on  board  thereof,  or  to  betray  their  proper  trust,  or 
assembles  with  others  in  a  tumultuous  and  mutinous  manner,  or 
makes  a  riot  on  board  thereof,  or  unlawfully  confines  the  master 
or  other  commanding  officer  thereof,  shall  be  fined  not  more  than 
one  thousand  dollars,  or  imprisoned  not  more  than  five  years,  or 
both." 

The  jurisdictional  question  suggested  in  the  statute  is  that 
only  the  acts  therein  mentioned  become  acts  punishable  in  United 
States  Courts  when  the  vessel  is  a  United  States  vessel;  and 
when  that  is  the  case,  the  acts  are  pimishable  in  the  United 
States,  whether  the  vessel  be  on  the  high  seas,  in  foreign  port,  or 
harbor,  or  upon  waters  within  the  admiralty  and  maritime  juris- 
diction of  this  government.  The  word  "crew"  in  the  statute 
must  necessarily  include  the  mate  and  all  other  inferior  officers, 
as  well  as  the  crew  proper.  In  fact,  it  includes  the  entire  force 
of  the  vessel,  with  the  exception  of  the  master.  This  was  the 
holding  in  the  United  States  vs.  Huff,  13  Federal,  page  630. 
That  case  also  makes  the  distinction  between  mere  passive  diso- 
bedience and  active  resistance.  In  other  words,  the  statute  would 
not  include  a  case  of  simple  passive  disobedience  of  the  master's 
orders  on  the  part  of  one  of  the  crew,  not  participated  in  by 
others.  So,  also,  that  case  includes  within  the  meaning  of  the 
statute  an  imlawful  confinement  of  the  master,  even  though  such 
confinement  was  not  physical,  but  merely  a  confinement  by  in- 
timidation, or  threats  of  bodily  injury  from  the  free  use  of  every 
part  of  the  vessel  in  the  performance  of  his  functions  as  master. 

In  the  case  of  United  States  vs.  Crawford,  25  Federal  Cases 
No.  14890,  it  was  held  that  the  vessel  must  be  proved  to  be  an 
American  vessel,  but  that  such  proof  can  be  made  by  parole. 
So,  also,  it  was  ruled  in  United  States  vs.  Seagrist,  27  Federal 
Case  16245,  and  27  Federal  Case  No.  16037.  A  vessel  engaged 
in  the  whaling  business,  which  has  not  taken  out  an  American 
license  or  enrollment,  is  not  protected  by  this  statute,  and  an  in- 


PIEACY  AND   OTHER  OFFENSES  UPON  THE   HIGH  SEAS     333 

dictment  will  not  hold  imder  this  section  against  her  crew  for 
revolt.  United  States  vs.  Rogers,  27  Federal  Case  No.  16189. 
See  also  United  States  vs.  Jenkins,  26  Federal  Case  No.  15437-a. 
For  other  cases  illustrating  the  statute,  see  United  States  vs. 
Sharp,  27  Federal  Case  16264;  United  States  vs.  Doughty,  25 
Federal  Case  14987;  United  States  vs.  Kelley,  11  Wheat.,  417; 
United  States  vs.  Smith.  27  Federal  Case  No.  16344;  United 
States  vs.  Forbes,  25  Federal  Case  No.  15129 ;  U.  S.  vs.  Lynch, 
26  Federal  Case  No.  15648;  United  States  vs.  Thompson,  28  Fed- 
eral Case  No.  16492.  As  defense  to  an  indictment  under  this 
section,  the  Courts  have  permitted  the  crew  to  show  that  the 
vessel  was  unseaworthy,  and  that,  therefore,  they  resisted  its 
sailing.  United  States  vs.  Ashton,  24  Federal  Case  No.  14470; 
also,  where  they  have  refused  to  perform  their  duty  on  accoimt 
of  a  proposed  deviation  in  the  original  line  of  voyage,  United 
States  vs.  Matthews,  26  Federal  Case  No.  15742. 

§  324.  Revolt  and  Mutiny  on  Ship  Board. — By  adding  the  words 
"of  the  United  States"  after  the  word  "vessel,"  old  Section 
5360  becomes  new  Section  293  in  the  following  words: 

"Sec.  293.  Whoever,  being  of  the  crew  of  a  vessel  of  the 
United  States,  on  the  high  seas,  or  on  any  other  waters  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
imlawfully  and  Avith  force,  or  by  fraud,  or  intimidation,  usurps 
the  command  of  such  vessel  from  the  master  or  other  lawful 
officer  in  command  thereof,  or  deprives  him  of  authority  and 
command  on  board,  or  resists  or  prevents  him  in  the  free  and 
lawful  exercise  thereof,  or  transfers  such  authority  and  command 
to  another  not  lawfully  entitled  thereto,  is  guilty  of  a  revolt  and 
mutiny,  and  shall  be  fined  not  more  than  two  thousand  dollars 
and  imprisoned  not  more  than  ten  years." 

Under  the  authority  of  United  States  vs.  Haines,  26  Federal 
Case  No.  15275,  and  United  States  vs.  Forbes,  25  Federal  Case 
No.  15129,  as  cited  in  Volume  6  Federal  Statutes,  page  929,  a 
revolt  is  an  open  rebellion  or  mutiny  of  the  crew  against  the  au- 
thority of  the  Master  in  the  command,  navigation,  or  control  of 
the  ship.  If  the  crew,  in  a  mutiny,  were  to  displace  him  from 
the  actual  command  of  the  ship,  and  appoint  another  in  his  stead, 
that  would  clearly  be  a  revolt.  It  would  be  an  actual  usurpation 
of  his  authority  on  board  of  the  ship  and  an  ouster  of  him  from 


334     PIRACY  AND   OTHER  OFFENSES  UPON  THE  HIGH  SEAS 

the  possession  and  control  of  it.  As  determined  in  United  States 
vs.  Almeida,  24  Federal  Case  No.  14433,  the  unlawful  acts  which 
now  fall  within  the  definition  of  a  maritime  revolt  are  distribu- 
ted by  the  language  of  the  Section  into  four  categories  or  classes : 
first,  simple  resistance  to  the  exercise  of  the  captain 's  authority ; 
second,  the  deposition  of  the  captain  from  his  command ;  third, 
the  transfer  of  the  captain's  power  to  a  third  person;  and, 
fourth,  the  usurpation  of  the  captain's  power  by  the  accused 
party.  See  also  United  States  vs.  Haines  and  United  States  vs. 
Forbes,  cited  supra.  Other  cases  are  United  States  vs.  Borden, 
24  Federal  Case,  1202;  United  States  vs.  Givings,  25  Federal 
Case,  1331;  United  States  vs.  Haskell,  26  Federal  Case,  207; 
United  States  vs.  Peterson,  27  Federal  Case,  515. 

§  325.  Seaman  Laying  Violent  Hands  on  His  Commander. — By 
changing  the  penalty  in  old  Section  5369  from  death  to  imprison- 
ment for  life,  that  section  becomes  Section  294  of  the  New  Code, 
as  follows: 

"Sec.  294.  Whoever,  being  a  seaman,  lays  violent  hands  upon 
his  commander,  thereby  to  hinder  and  prevent  his  fighting  in  de- 
fense of  his  vessel  or  the  goods  intrusted  to  him,  is  a  pirate,  and 
shall  be  imprisoned  for  life." 

§  326.  Abandonment  of  Mariners  in  Foreign  Ports. — Section 
5363  of  the  old  statutes,  taking  into  consideration  Section  310  of 
the  New  Code,  which  defines  what  the  words  "vessel  of  the  Uni- 
ted States"  means,  is  practically  the  same  as  Section  295  of  the 
New  Code,  in  the  following  words : 

"Sec.  295.  "Whoever,  being  master  or  commander  of  a  ves- 
sel of  the  United  States,  while  aboard,  maliciously  and  without 
justifiable  cause  forces  any  officer  or  mariner  of  such  vessel  on 
shore,  in  order  to  leave  behind  him  in  any  foreign  port  or  place, 
or  refuses  to  bring  home  again  all  such  officers  and  mariners  of 
such  vessel  whom  he  carried  out  with  him.  as  are  in  a  condition 
to  return  and  willing  to  return,  when  he  is  ready  to  proceed  on 
his  homeward  voyage,  shall  be  fined  not  more  tan  five  hundred 
dollars,  or  imprisoned  not  more  than  six  months,  or  both." 

See  United  States  vs.  Ruggles,  5  Mass.,  192;  United  States  vs. 
Coffin,  1  Sumn.,  394;  United  States  vs.  Netcher,  1  Storey,  307; 
United  States  vs.  Riddle.  4  Wash..  644;  Nieto  vs.  Clark,  IS  Fed- 
eral Case,  236. 


PIEACY  AND   OTHER  OFFENSES  UPON  THE  HIGH  SEAS     335 

In  Chinese  Laborers  Case,  13  Federal  Reporter,  291,  the  Court 
held  that  the  immigration  laws  of  the  United  States,  which  pro- 
hibited the  importation  of  Chinese  laborers,  did  not  apply  to 
bringing  a  Chinese  laborer  already  on  board  the  vessel  when 
touching  at  a  foreign  port  or  place.  In  other  words,  while  on 
board  an  American  vessel,  a  Chinese  laborer  is  within  the  juris- 
diction of  the  United  States,  and  does  not  lose,  by  his  employ- 
ment, the  right  of  residence  here  previously  acquired  under  the 
treaty  with  China.  His  status  as  an  American  citizen  is  not 
changed  by  the  fact  of  his  employment  on  an  American  vessel, 
and  that  he  is  permitted  by  the  captain  to  land  for  a  few  hours  in 
a  foreign  port. 

§  327.  Conspiracy  to  Cast  Away  Vessel. — Old  Section  5364  be- 
comes, without  any  material  change.  Section  296  of  the  New 
Code,  in  the  following  words : 

"Sec.  296.  "Whoever,  on  the  high  seas,  or  within  the  United 
States,  wilfully  and  corruptly  conspires,  combines,  and  confeder- 
ates with  any  other  person,  such  other  person  being  either  within 
or  without  the  United  States,  to  cast  aM'ay  or  othermse  destroy 
any  vessel,  with  intent  to  injure  any  person  that  may  have  imder- 
written  or  may  thereafter  underwrite  any  policy  of  insurance 
thereon  or  on  goods  on  board  thereof,  or  with  intent  to  injure 
any  person  that  has  lent  or  advanced,  or  may  lend  or  advance, 
any  money  on  such  vessel  on  bottomry  or  respondentia ;  or  who- 
ever, ^\^thin  the  United  States,  builds,  or  fits  out,  or  aids  in  build- 
ing or  fitting  out,  any  vessel  with  intent  that  the  same  be  cast 
away  or  destroyed,  with  the  intent  hereinbefore  mentioned,  shall 
be  fined  not  more  than  ten  thousand  dollars  and  imprisoned  not 
more  than  ten  years." 

The  constitutionality  of  this  section  has  been  determined  in 
United  States  vs.  Cole,  5  McLean,  513;  25  Federal  Cases  No. 
14832 ;  and  in  that  same  case  it  was  also  determined  that  the 
section  related  to  the  internal,  as  well  as  the  foreign  commerce 
of  the  United  States.  In  that  same  case,  it  was  also  held  that  an 
actual  injury  was  not  necessary ;  as,  for  instance,  any  combination 
or  conspiracy  to  bring  about  the  destruction  of  the  vessel  or  any 
portion  of  its  cargo,  ripened  the  offense  of  the  statute. 

In  United  States  vs.  Hand,  6  McLean,  274;  26  Federal  Cases 
No.  15296,  the  Court  speaks  of  the  specific  intent  necessary  under 
the  statute,  which  must  be  both  alleged  and  proven. 


336     PIRACY  AND   OTHER  OFFENSES  UPON  THE  HIGH  SEAS 

§  328.  Plundering  Vessel,  Etc.,  in  Distress. — By  increasing  the 
punishment  from  ten  years  to  life  imprisonment,  old  Section 
5358  becomes  new  Section  297,  in  the  following  words: 

"Sec.  297.  Whoever  plunders,  steals,  or  destroys  any  mon- 
ey, goods,  merchandise,  or  other  effects,  from  or  belonging  to  any 
vessel  in  distress,  or  wrecked,  lost,  stranded,  or  cast  away,  upon 
the  sea,  or  upon  any  reef,  shoal,  bank,  or  rocks  of  the  sea,  or  in 
any  other  place  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  shall  be  fined  not  more  than  five  thousand 
dollars  and  imprisoned  not  more  than  ten  years;  and  whoever 
wilfully  obstructs  the  escape  of  any  person  endeavoring  to  save 
his  life  from  such  vessel,  or  the  wreck  thereof ;  or  whoever  holds 
out  or  shows  any  false  light,  or  extinguishes  any  true  light,  with 
intent  to  bring  any  vessel  sailing  upon  the  sea  into  danger,  or 
distress,  or  shipwreck,  shall  be  imprisoned  not  less  than  ten  years 
and  may  be  imprisoned  for  life." 

Under  United  States  vs.  Coombs,  12  Peters,  72,  it  is  entirely 
immaterial  whether  the  goods  be  upon  the  vessel  or  not,  or 
whether  the  goods  be  above  high  water  mark.  It  is  entirely  suffi- 
cient if  it  be  property  belonging  to  any  ship  or  vessel.  This  same 
case  determined  the  constitutionality  of  this  section,  and  held 
that  it  was  within  the  power  of  Congress,  under  the  commerce 
clause  of  the  Constitution. 

In  United  States  vs.  Stone,  8  Federal,  232,  Judge  Hammond 
overruled  a  motion  for  a  new  trial,  which  was  requested  by  cer- 
tain men  who  were  convicted  for  plundering  the  wreck  of  the 
City  of  Vicksburg,  out  of  which  fifty-one  indictments  were 
found;  and  in  that  opinion,  he  held  that  Section  5358  was  com- 
prehensive, and  afforded  an  extraordinary  protection  to  property 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  by  creating  and  punishing  a  substantive  and  distinct  of- 
fense for  all  acts  of  spoliation  upon  the  property  belonging  to  a 
vessel  wrecked  or  in  distress;  that  it  was  not  alone  the  crime  of 
larceny  that  the  statute  punishes,  but  any  act  of  depredation, 
whether  it  be  of  the  character  that  would  be  piracy  if  committed 
on  the  high  seas,  robbery  or  other  forcible  taking,  theft,  trespass, 
malicious  mischief,  or  any  fraudulent  and  criminal  breach  of 
trust,  if  committed  on  land,  of  property  solely  imder  the  pro- 
tection of  Common  or  statutory  law  of  the  State;  and  that  no 
specific  intent  was  necessary  under  the  statute  to  constitute  the 


PIRACY  AND   OTHER  OFFENSES  UPON  THE   HIGH  SEAS     337 

offense.  In  other  words,  any  intent,  except  that  of  restoring  the 
goods  to  the  vessel  or  the  o^\^ler,  was  the  unlawful  intent  com- 
prehended under  the  statute ;  and  whether  conceived  at  the  time 
of  the  taking,  or  subsequently  thereto,  if  carried  out,  made  the 
offense  complete. 

United  States  vs.  Sanche  was  the  upholding  of  a  conspiracy 
indictment  under  Section  5440,  for  a  violation  of  5358.  Other 
cases  bearing  upon  different  features  of  this  section  are  United 
States  vs.  Kessler,  26  Federal  Cases,  766 ;  United  States  vs.  Pit- 
man, 27  Federal  Case,  540 ;  United  States  vs.  Smiley,  27  Federal 
Cases,  1132. 

§  329.  Attacking  Vessel  with  Intent  to  Plunder. — Because  of 
Section  272  of  the  New  Code,  heretofore  noted.  Section  298  of 
the  New  Code,  which  is  a  re-enactment  of  Section  5361  of  the  old 
statutes,  does  not  enumerate  the  waters  upon  which  the  offense 
may  be  committed,  and  Section  298  is  in  the  following  words : 

"Sec.  298.  Whoever,  upon  the  high  seas  or  on  any  other 
waters  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  by  surprise  or  by  open  force,  maliciously  attacks 
or  sets  upon  any  vessel  belonging  to  another,  with  an  intent  un- 
lawfully to  plunder  the  same,  or  to  despoil  any  o^\^ler  thereof  of 
any  moneys,  goods,  or  merchandise  laden  on  board  thereof,  shall 
be  fined  not  more  than  five  thousand  dollars  and  imprisoned  not 
more  than  ten  years." 

United  States  vs.  Stone,  8  Federal,  232.  cited  supra. 

§  330.  Breaking  and  Entering  Vessel,  Etc. — By  changing  old 
Section  5362  so  as  to  limit  it  to  offenses  that  are  committed  out 
of  the  jurisdiction  of  any  particular  State,  such  section  becomes 
Section  299  of  the  New  Code,  in  the  following  words : 

"Sec.  299.  Whoever,  upon  the  high  seas,  or  on  any  other 
waters  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  any  particular  State, 
breaks  or  enters  any  vessel,  with  intent  to  commit  any  felony,  or 
maliciously  cuts,  spoils,  or  destroys  any  cordage,  cable,  buoys, 
buoy  rope,  head  fast,  or  other  fast,  fixed  to  the  anchor  or  moor- 
ings belonging  to  any  vessel,  shall  be  fined  not  more  than  one 
thousand  dollars  and  imprisoned  not  more  than  five  years." 

§  331.  Owner  Destroying  Vessel  at  Sea. — Old  Section  5365  de- 
nounced the  acts  only  when  committed  upon  the  high  seas.  New 
Section  300  so  broadens  the  offense  as  to  include  all  the  waters 


338     PIRACY  AND   OTHER  OFFENSES  UPON  THE  HIGH  SEAS 

within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  reads  as  follows : 

' '  Sec.  300.  Whoever,  upon  the  high  seas  or  on  any  other  wa- 
ters within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  wilfully  and  corruptly  casts  away  or  otherwise  destroys 
any  vessel,  of  which  he  is  owner,  in  whole  or  in  part,  with  intent 
to  prejudice  any  person  that  may  underwrite  any  policy  of  insur- 
ance thereon,  or  any  merchant  that  may  have  goods  thereon,  or 
any  other  owner  of  such  vessel,  shall  be  imprisoned  for  life  or  for 
any  term  of  years. ' ' 

§  332.  Other  Persons  Destroying  or  Attempting  to  Destroy  Ves- 
sel at  Sea. — Section  301  of  the  New  Code  takes  the  place  of  old 
Sections  5366  and  5367,  by  incorporating  both  the  act  and  the 
attempt  to  perform  the  act  of  destruction,  and  is  in  the  following 
words : 

"Sec.  301.  Whoever,  not  being  an  owner,  upon  the  high  seas 
or  on  any  other  waters  within  the  admiralty  and  maritime  juris- 
diction of  the  United  States,  wilfully  and  corruptly  casts  away  or 
otherwise  destroys  any  vessel  of  the  United  States  to  which  he 
belongs,  or,  wilfully,  with  intent  to  destroy  the  same,  sets  fire 
to  any  such  vessel,  or  otherwise  attempts  the  destruction  thereof, 
shall  be  imprisoned  not  more  than  ten  years. ' ' 

The  Act,  it  will  be  noted,  covers  the  offense  not  only  upon  the 
high  seas,  as  did  the  original  statutes,  but  upon  any  other  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States.  In  United  States  vs.  Vanranst,  28  Federal  Case,  No. 
16608,  the  Court  held  that  the  offense  was  complete  under  this 
section  if  the  mate  destroyed  the  vessel,  even  though  he  had  no 
interest  therein,  and  even  though  the  plan  for  its  destruction  was 
laid  before  the  sailing  by  the  owner  himself.  See  also  United 
States  vs.  Jacobson,  26  Federal  Cases  No.  16461.  See  also  United 
States  vs.  Wilson,  28  Federal  Case,  718 ;  U.  S.  vs.  McAvoy,  26 
Federal  Case,  1044. 

§  333.  Robbery  on  Shore  by  Crew  of  Piratical  Vessel. — Section 
5371  becomes  Section  302  of  the  New  Code  as  follows: 

"Sec.  302.     Whoever,  being  engaged  in  any  piratical  cruise, 
or  enterprise,  or  being  of  the  crew  of  any  piratical  vessel,  lands 
from  such  vessel,  and  on  shore  commits  robbery,  is  a  pirate,  and 
shall  be  imprisoned  for  life." 
In  the  construction  of  the  general  terms  "piratical  cruise,"  of 


PIRACY  AND   OTHER  OFFENSES  UPON  THE  HIGH  SEAS     339 

this  section,  the  pleader  will  look  to  the  definition  of  piracy,  as 
heretofore  given. 

§  334.  Arming  Vessel  to  Cruise  Against  the  Citizens  of  the  Uni- 
ted States. — Section  303  of  the  New  Code  takes  the  place  of  old 
Section  5284,  and  is  as  follows : 

"Sec.  303.  Whoever,  being  a  citizen  of  the  United  States, 
without  the  limits  thereof,  fits  out  and  arms,  or  attempts  to  fit 
out  and  arm,  or  procures  to  be  fitted  out  and  armed,  or  knowingly 
aids  or  is  concerned  in  furnishing,  fitting  out,  or  arming,  any 
private  vessel  of  war,  or  privateer,  with  intent  that  such  vessel 
shall  be  emploj^ed  to  cruise  or  conunit  hostilities  upon  the  citizens 
of  the  United  States,  or  their  property,  or  whoever  takes  the 
command  of  or  enters  on  board  of  any  such  vessel,  for  such  in- 
tent, or  who  purchases  any  interest  in  any  such  vessel  with  a 
view  to  share  in  the  profits  thereof,  shall  be  fined  not  more  than 
ten  thousand  dollars  and  imprisoned  not  more  than  ten  years. 
The  trial  for  such  offense,  if  committed  without  the  limits  of  the 
United  States,  shall  be  in  the  district  in  which  the  offender  shall 
be  apprehended  or  first  brought." 

See  United  States  vs.  Howard,  3  Wash.,  340;  26  Federal  Case, 
390. 

§  335.  Piracy  Under  Color  of  a  Foreign  Commission. — Section 
5373  of  the  old  Statutes  becomes  Section  304  of  the  New  Code,  as 
f  ollOAVS : 

"Sec.  304.  Whoever,  being  a  citizen  of  the  United  States, 
commits  any  murder  or  robbery,  or  any  act  of  hostility  against 
the  United  States,  or  against  any  citizen  thereof,  on  the  high 
seas,  under  color  of  any  commission  from  any  foreign  prince,  or 
state,  or  on  pretense  of  authority  from  any  person,  is,  notwith- 
standing the  pretense  of  such  authority,  a  pirate,  and  shall  be 
imprisoned  for  life." 

See  United  States  vs.  Palmer,  3  Wheat.,  610;  United  States  vs. 
Baker,  5  Blatchf.,  6;  24  Federal  Cases,  962;  United  States  vs. 
Hutchings,  26  Federal  Case,  440;  United  States  vs.  Terrel,  1 
Federal  Case,  999. 

§  336.  Piracy  by  Subjects  or  Citizens  of  a  Foreign  State. — Sec- 
tion 305  of  the  New  Code  displaces  Section  5374  of  the  old  stat- 
utes, and  is  as  follows: 

"Sec.  305.  Whoever,  being  a  citizen  or  svibject  of  any  for- 
eign state,  is  foimd  and  taken  on  the  sea  making  war  upon  the 
United  States,  or  cruising  against  the  vessels  and  property  there- 


340     PIRACY  AND   OTHER  OFFENSES  UPON  THE  HIGH  SEAS 

of,  or  of  the  citizens  of  the  same,  contrary  to  the  provisions  of 
any  treaty  existing  between  the  United  States  and  the  state  of 
which  the  offender  is  a  citizen  or  subject,  when  by  such  treaty 
such  acts  are  declared  to  be  piracy,  is  guilty  of  piracy,  and  shall 
be  imprisoned  for  life." 

§  337.  Running  Awiay  with  or  Yielding  up  Vessel  of  Cargo. — 
Old  Section  5383  becomes  new  Section  306  in  the  following  words : 

"Sec.  306.  Whoever,  being  a  captain  or  other  officer  or  mar- 
iner of  a  vessel  upon  the  high  seas  or  on  any  other  waters  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
piratically  or  feloniously  runs  away  wdth  such  vessel,  or  with  any 
goods  or  merchandise  thereof,  to  the  value  of  fifty  dollars,  or 
who  yields  up  such  vesel  voluntarily  to  any  pirate,  shall  be  fined 
not  more  than  ten  thousand  dollars,  or  imprisoned  not  more  than 
ten  years,  or  both." 

In  United  States  vs.  Tully,  28  Federal  Case,  16545,  the  intent 
must  be  alleged  and  proven,  as  in  other  criminal  cases  requiring 
such  proof  and  allegation ;  but  the  piratical  and  felonious  run- 
ning away  with  a  vessel  does  not  mean  that  personal  force  and 
violence  must  have  been  used.  See  also  United  States  vs.  How- 
ard, 26  Federal  Case,  15404 ;  United  States  vs.  Kessler,  26  Fed- 
eral Case,  15528. 

§  338.  Confederating,  Etc.,  with  Pirates. — New  Section  307 
takes  the  place  of  old  Section  5384,  and  is  in  the  following  words  : 

"Sec.  307.  "Whoever  attempts  or  endeavors  to  corrupt  any 
commander,  master,  officer,  or  mariner  to  yield  up  or  to  run 
away  w4th  any  vessel,  or  with  any  goods,  wares,  or  merchandise, 
or  to  turn  pirate,  or  to  go  over  to  or  confederate  with  pirates,  or 
in  any  wise  to  trade  with  any  pirate,  knowing  him  to  be  such,  or 
furnishes  such  pirate  with  any  ammunition,  stores,  or  provisions 
of  any  kind,  or  fits  out  any  vessel  knowingly  and,  with  a  design 
to  trade  with,  supply,  or  correspond  with  any  pirate  or  robber 
upon  the  seas;  or  whoever  consults,  combines,  confederates,  or 
corresponds  with  any  pirate  or  robber  upon  the  seas,  knowing 
him  to  be  guilty  of  any  piracy  or  robbery ;  or  whoever,  being  a 
seaman,  confines  the  master  of  any  vessel,  shall  be  fined  not  more 
than  one  thousand  dollars  and  imprisoned  not  more  than  three 
years." 

See  U.  S.  vs.  Howard.  26  Federal  Cases,  390. 

§  339.  Sale  of  Arms  and  Intoxicants  Forbidden  in  Pacific  Islands. 
—The  Act  of  February  14,  1902,  32  Statute  at  Large,  33,  be- 
comes Section  308  of  the  New  Code,  in  the  following  words : 


PIEACY  AND   OTHER   OFFENSES  UPON  THE  HIGH  SEAS     341 

"Sec.  308.  "Whoever,  being  subject  to  the  authority  of  the 
United  States,  shall  give,  sell,  or  other'wise  supply  any  arms,  am- 
munition, explosive  substance,  intoxicating  liquor,  or  opium  to 
any  aboriginal  native  of  any  of  the  Pacific  Islands  lying  within 
the  twentieth  parallel  of  north  latitude  and  the  fortieth  parallel 
of  south  latitude,  and  the  one  hundred  and  twentieth  meridian 
of  longitude  west  and  the  one  hundred  and  twentieth  meridian 
of  longitude  east  of  Greenwich,  not  being  in  the  possession  or 
under  the  protection  of  any  civilized  power,  shall  be  fined  not 
more  than  fifty  dollars  or  imprisoned  not  more  than  three  months, 
or  both.  In  addition  to  such  punishment,  all  articles  of  a  similar 
nature  to  those  in  respect  to  which  an  offense  has  been  committed, 
found  in  the  possession  of  the  offender,  may  be  declared  forfeited. 
If  it  shall  appear  to  the  court  that  such  opium,  wine,  or  spirits 
have  been  given  bona-fide  for  medical  purposes,  it  shall  be  lawful 
for  the  court  to  dismiss  the  charge." 

§  340.  Offenses  Under  Preceding  Section  Deemed  on  High  Seas. 
— ^Another  part  of  the  Act  of  February  14,  1902,  becomes  Sec- 
tion 309  of  the  New  Code,  as  follows : 

"Sec.  309.  All  offenses  against  the  provisions  of  the  section 
last  preceding,  committed  on  any  of  said  islands,  or  on  the 
waters,  rocks,  or  keys  adjacent  thereto,  shall  be  deemed  commit- 
ted on  the  high  seas  on  board  a  merchant  ship  or  vessel  belonging 
to  the  United  States,  and  the  courts  of  the  United  States  shall 
have  jurisdiction  accordingly." 

§  341.  Vessels  of  the  United  States  Defined. — Section  310  of  the 
New  Code  reads  as  follows : 

"Sec.  310.  The  words  "vessel  of  the  United  States,"  wher- 
ever they  occur  in  this  chapter,  shall  be  construed  to  mean  a  ves- 
sel belonging  in  Avhole  or  in  part  to  the  United  States,  or  any 
citizen  thereof,  or  any  corporation  created  by  or  under  the  laws 
of  the  United  States,  or  of  any  State,  Territory,  or  District 
thereof." 


CHAPTER  XV. 
CERTAIN  OFFENSES  IN  THE  TERRITORIES. 

§  342.     No    Conflict    Between    Territory    Code    and    United    States    Code: 
New  Code,  311. 

343.  Circulation  of  Obscene  Literature,  Promoting  Abortion,  How  Pun- 

ished:   5389—312. 

344.  Polygamy:   5352—313. 

345.  Unlawful  Cohabitation:   New  Code,  314. 

346.  Joinder  of  Counts:   New  Code,  315. 

347.  Decisions  on  Foregoing  Statutes. 

348.  Adultery:   I  Sup.,  568—316. 

349.  Incest:    I   Sup.,   568—317. 

350.  Fornication:   I  Sup.,  568—318. 

351.  Certificates  of  Marriage;   Penalty  for  Failure  to  Record. 

352.  Prize  Fights,  Bull  Fights,  Etc.:   II  Sup.,  446—320. 

353.  "Pugilistic  Encounter"  Defined:  II  Sup.,  446—321. 

354.  Train  Eobberies  in  Territories,  Etc. :    New  Code,  322. 

§  342.  The  New  Code  provides  certain  specific  offenses  for  the 
Territories  of  the  United  States,  which  do  not,  as  we  understand 
it,  interfere  with  any  Territorial  statute  that  may  be  existing. — 
Any  conflict  between  the  statutory  offenses  herein  defined  and 
those  defined  and  established  by  any  Territorial  statute,  would 
in  no  way  render  the  Territorial  statute  illegal  or  void  or  un- 
constitutional. It  would  remain  in  force  and  be  the  law  of  the 
Territory.    In  re  Nelson,  69  Federal,  712. 

The  offenses  herein  treated  of  are  not  confined  to  the  Terri- 
tories, but  are  punishable  if  committed  within  or  upon  any  place 
within  the  exclusive  jurisdiction  of  the  United  States,  such  as 
forts  or  arsenals.  Government  reservations,  public  building  sites. 
Etc.,  as  is  shown  by  Section  311,  which  reads  as  follows: 

"Sec.  311.  Except  as  otherwise  expressly  provided,  the  of- 
fenses defined  in  this  chapter  shall  be  pimished  as  hereinafter 
provided,  when  committed  within  any  Territory  or  District,  or 
within  or  upon  any  place  within  the  exclusive  .iurisdiction  of  the 
United  States." 

342 


CEETAIN  OFFENSES  IN  THE  TERRITORIES  343 

§343.  Circulation  of  Obscene  Literature;  Promoting  Abortion; 
How  Punished. — Section  312  of  the  New  Code  includes  practically 
all  of  the  elements  of  the  statute  the  abuse  of  the  United  States 
mails  in  the  transmission  of  obscene,  etc.,  matter,  and  in  the  In- 
terstate Commerce  Statute,  which  relates  to  the  shipping  or  car- 
rying of  obscene  matter,  etc.  Section  312  of  the  New  Code  is  in 
the  following  language,  which  displaces  all  provisions  of  old 
Section  5389  : 

"Sec.  312.  Whoever  shall  sell,  lend,  give  away,  or  in  any 
manner  exhibit,  or  offer  to  sell,  lend,  give  away,  or  in  any  manner 
exhibit,  or  shall  otherwise  publish  or  offer  to  publish  in  any 
manner,  or  shall  have  in  his  possession  for  any  such  purpose,  any 
obscene  book,  pamphlet,  paper,  writing,  advertisement,  circular, 
print,  picture,  drawing,  or  other  representation,  figure,  or  image 
on  or  of  paper  or  other  material,  or  any  cast,  instrument,  or 
other  article  of  an  immoral  nature  or  any  drug  or  medicine,  or 
any  article  whatever,  for  the  prevention  of  conception,  or  for 
causing  unlawful  abortion,  or  shall  advertise  the  same  for  sale, 
or  shall  write  or  print,  or  cause  to  be  written  or  printed,  any 
card,  circular,  book,  pamphlet,  advertisement,  or  notice  of  any 
kind,  stating  when,  where,  how,  or  of  whom,  or  by  what  means, 
any  of  the  articles  above  mentioned  can  be  purchased  or  obtained, 
or  shall  manufacture,  draw,  or  print,  or  in  any  wise  make  any 
of  such  articles,  shall  be  fined  not  more  than  two  thousand  dol- 
lars, or  imprisoned  not  more  than  five  years,  or  both." 

§  344.  Polygamy.— Section  313  of  the  New  Code  displaces  old 
Statute  5352,  and  the  Act  of  March  twenty -second,  1882,  shown 
in  First  Supplement,  331,  and  is  in  the  following  language : 

"Sec.  313.  Every  person  who  has  a  husband  or  wife  living, 
who  marries  another,  whether  married  or  single,  and  any  man 
who  simultaneously,  or  on  the  same  day,  marries  more  than  one 
woman,  is  guilty  of  polygamy,  and  shall  be  fined  not  more  than 
five  hundred  dollars  and  imprisoned  not  more  than  five  years. 
But  this  section  shall  not  extend  to  any  person  by  reason  of  any 
former  marriage  whose  husband  or  wife  by  such  marriage  shall 
have  been  absent  for  five  successive  years,  and  is  not  known  to 
such  person  to  be  living,  and  is  believed  by  such  person  to  be 
dead,  nor  to  any  person  by  reason  of  any  former  marriage  which 
shall  have  been  dissolved  by  a  valid  decree  of  a  competent  court, 
nor  to  any  person  by  reason  of  any  former  marriage  which  shall 
have  been  pronounced  void  by  a  valid  decree  of  a  competent 
court,  on  the  ground  of  nullity  of  the  marriage  contract." 


344  cbe'Tain  offenses  in  the  territories 

§  345.  Unlawful  Cohabitation. — Section  314  of  the  New  Code 
reads  as  follows: 

"See.  314.  If  any  male  person  cohabits  with  more  than  one 
woman,  he  shall  be  fined  not  more  than  three  himdred  dollars,  or 
imprisoned  not  more  than  six  months,  or  both." 

§  346.  Joinder  of  Counts. — Section  315,  which  permits  joinder 
in  the  same  indictment  of  charges  under  the  two  above  mentioned 
sections,  is  as  follows: 

''Sec.  315.  Counts  for  any  or  all  of  the  offenses  named  in  the 
two  sections  last  preceding  may  be  joined  in  the  same  information 
or  indictment." 

§  347.  Decisions. — The  offense  of  polygamy,  as  distinguished 
from  open  and  notorious  co-habitation,  was  not  an  offense  under 
the  Comon  Law,  and,  therefore,  is  statutory  in  this  country. 
The  Supreme  Court  of  the  United  States,  in  the  Miles  Case,  103 
U.  S.,  311,  announced  the  doctrine  that  the  proof  of  marriage 
will  not  be  limited  to  only  such  witnesses  as  were  eye  witnesses. 
Cohabitation  and  reputation  of  being  husband  and  wife  are 
usually  considered  together  in  questions  concerning  the  proof 
of  marriage.  This  was  followed  in  United  States  vs.  Higgerson, 
Volume  46,  Federal  Reporter,  750.  It  is  always  pertinent,  under 
the  offense  of  bigamy  and  adultery  and  kindred  offenses,  to 
prove  the  marriage  relation.  In  the  leading  case  of  Cannon  vs. 
United  States,  116  U.  S.,  page  55 ;  29  Law  Ed.,  561,  the  Supreme 
Court  held  that  a  man  "co-habits"  with  more  than  one  woman 
when  holding  out  to  the  world  two  or  more  women  as  his  wives, 
by  his  language  or  conduct,  or  both,  and  when  he  lives  in  the 
same  house  with  them,  and  eats  at  the  table  of  each  a  portion  of 
the  time,  although  he  may  not  occupy  the  same  bed,  sleep  in  the 
same  room,  or  actually  have  sexual  intercourse  with  either  of 
them. 

In  ex  parte  Snow,  120  U.  S.,  274,  30  Law  Ed.,  658,  the  Su- 
preme Court  held  that  co-habiting  was  a  continuous  offense, 
and  can  be  committed  but  once  for  the  purpose  of  indictment  or 
prosecution,  prior  to  the  time  the  prosecution  is  instituted ;  and 
a  grand  jury  cannot  divide  the  offense  into  separate  offenses, 
and  find  separate  indictments;  as,  where  a  man  unlawfully  co- 


CEETAIN  OFFENSES  IN  THE  TERRITORIES  345 

habited  with  seven  women  for  twenty-five  months,  there  could 
be  but  one  indictment. 

§  348.  Adultery. — Section  316  of  the  New  Code  takes  the  place 
of  the  Act  of  March  third,  1887,  shown  at  First  Supplement,  568, 
and  is  in  the  following  words: 

"Sec.  316.  Whoever  shall  commit  adultery  shall  be  impris- 
oned not  more  than  three  years;  and  when  the  act  is  committed 
between  a  married  woman  and  a  man  who  is  unmarried,  both 
parties  to  such  act  shall  be  deemed  guilty  of  adultery;  and 
when  such  act  is  committed  between  a  married  man  and  a  woman 
who  is  unmarried,  the  man  shall  be  deemed  guilty  of  adultery.'.' 

§  349.  Incest. — Section  317  of  the  New  Code  displaces  the  Act 
of  March  third,  1887,  shown  at  First  Supplement,  568,  and  is  in 
the  following  words : 

''Sec.  317.  Whoever,  being  related  to  another  person  within 
and  not  including  the  fourth  degree  of  consanguinity  computed 
according  to  the  rules  of  the  civil  law,  shall  marry  or  cohabit 
with,  or  have  sexual  intercourse  with  such  other  so  related  per- 
son, knowing  her  or  him  to  be  within  said  degree  of  relationship, 
shall  be  deemed  guilty  of  incest,  and  shall  be  imprisoned  not  more 
than  fifteen  years." 

Incest  was  not  an  offense  at  Common  Law,  though  it  was  pun- 
ished in  the  churches.  The  language  of  the  statute  demands 
knowing  intercourse  between  parties  related  within  the  fourth 
degree  of  consanguinity,  such  relationship  to  be  computed  ac- 
cording to  the  rules  of  the  Civil  Law.  It  will  be  borne  in  mind 
that  the  method  of  computing  relationship  differs  in  the  Canon 
Law,  as  adopted  into  the  Common  Law,  and  the  Civil  Law.  In 
other  words,  under  the  Canon  Law,  or  the  Common  Law,  the 
computing  begins  at  the  common  ancestor,  and  reckons  down- 
ward, and  in  whatever  degree  the  two  persons,  or  the  most  re- 
mote, is  distant  from  the  common  ancestor,  that  is  the  degree  in 
which  they  are  related.  The  method  in  the  Civil  Law  is  to  count 
upward  from  either  of  the  persons  related,  to  the  common  an-  ' 
cestor,  and  then  do\^Tiward  to  the  other,  reckoning  a  degree  for 
each  person,  both  ascending  and  descending.  In  other  words, 
the  Canonists  took  the  number  of  degrees  in  the  longest  line ;  the 
Civilians,  the  sum  of  the  degrees  in  both  lines.  Anderson 's  Dic- 
tionary of  Law,  229;  2  Blackstone's  Commentary,  206-207;  4 


346  CERTAIN  OFFENSES  IN  THE  TERRITORIES 

Kent,  412 ;  2  Litt.  Coke,  158.  Under  this  statute,  it  is  also  neces- 
sary that  the  indictment  allege,  and  the  proof  show,  the  fact  of 
Imowledge  of  such  degree  of  relationship. 

§  350.  Fornication. — Section  318  of  the  New  Code,  which  is 
also  a  part  of  the  Act  of  March  third,  1887,  First  Supplement, 
568,  reads  as  follows : 

"Sec.  318.  If  any  unmarried  man  or  woman  commits  forni- 
cation, each  shall  be  fined  not  more  than  one  hundred  dollars,  or 
imprisoned  not  more  than  six  months." 

§  351.  Certificates  of  Marriage;  Penalty  for  Failure  to  Record. 
— From  the  Act  of  March  3,  1887,  First  Supplement,  568,  comes 
Section  319  of  the  New  Code,  as  follows : 

"Sec.  319.  Every  ceremony  of  marriage,  or  in  the  nature  of 
a  marriage  ceremony  of  any  kind,  whether  either  or  both  or  more 
of  the  parties  to  such  ceremony  be  lawfully  competent  to  be  the 
subject  of  such  marriage  or  ceremony  or  not,  shall  be  certified  by  a 
certificate  stating  the  fact  and  nature  of  such  ceremony,  the  full 
name  of  each  of  the  parties  concerned,  and  the  full  name  of  every 
officer,  priest,  and  person,  by  whatever  style  or  designation  called 
or  known,  in  any  way  taking  part  in  the  performance  of  such  cere- 
mony, which  certificate  shall  be  drawn  up  and  signed  by  the 
parties  to  such  ceremony  and  by  every  officer,  priest,  and  person 
taking  part  in  the  performance  of  such  ceremony,  and  shall  be 
by  the  officer,  priest,  or  other  person  solemnizing  such  marriage 
or  ceremony  filed  in  the  office  of  the  probate  court,  or,  if  there 
be  none,  in  the  office  of  the  court  having  probate  powers  in  the 
county  or  district  in  which  such  ceremony  shall  take  place,  for 
record,  and  shall  be  immediately  recorded,  and  be  at  all  times 
subject  to  inspection  as  other  public  records.  Such  certificate, 
or  the  record  thereof,  or  a  duly  certified  copy  of  such  record, 
shall  be  prima  facie  evidence  of  the  facts  required  by  this  section 
to  be  stated  therein  in  any  proceeding,  civil  or  criminal,  in  which 
the  matter  shall  be  dra^wTi  in  question.  But  nothing  in  this  sec- 
tion shall  be  held  to  prevent  the  proof  of  marriages,  whether  law- 
ful or  unlawful,  by  any  evidence  otherwise  legally  admissible  for 
.  that  purpose.  Whoever  shall  wilfully  violate  any  provision  of 
this  section  shall  be  fined  not  more  than  one  thousand  dollars,  or 
imprisoned  not  more  than  two  years,  or  both.  The  provisions  of 
this  section  shall  apply  only  within  the  Territories  of  the  United 
States." 

It  will  be  noted  that  this  section  applies  only  in  the  Territories, 
and,  therefore,  it  would  seem  that  the  general  provisions  of  Sec- 


CEETAIN  OFFENSES  IN  THE  TERRITORIES  347 

tion  311  of  this  chapter  are  excepted  by  this  special  provision  in 
Section  319. 

§  352.  Prize  Fights,  Bull  Fights,  Etc.— From  the  Act  of  Feb- 
ruary seventh,  1896,  Second  Supplement,  446,  is  taken  in  sub- 
stance Section  320  of  the  New  Code,  in  the  following  language : 

"Sec.  320.  Whoever  shall  voluntarily  engage  in  a  pugilistic 
encounter  between  man  and  man  or  a  fight  between  a  man  and  a 
bull  or  any  other  animal,  for  money  or  for  other  thing  of  value, 
or  for  any  championship,  or  upon  the  result  of  which  any  money 
or  anything  of  value  is  bet  or  wagered,  or  to  see  which  any  ad- 
mission fee  is  directly  or  indirectly  charged,  shall  be  imprisoned 
not  more  than  five  years.  The  provisions  of  this  section  shall 
apply  only  within  the  Territories  of  the  United  States  and  the 
District  of  Columbia." 

§  353.  Pugilistic  Encounter  Defined. — From  the  same  last  above 
mentioned  Act  also  comes  the  definition  of  "pugilistic  encoun- 
ters, ' '  as  shown  in  Section  321  of  the  New  Code,  as  follows : 

"Sec.  321.  By  the  term  "pugilistic  encounter,"  as  used  in 
the  section  last  preceding,  is  meant  any  voluntary  fight  by  blows 
by  means  of  fists  or  otherwise,  whether  with  or  without  gloves, 
between  two  or  more  men,  for  money  or  for  a  prize  of  any  char- 
acter, or  for  any  other  thing  of  value,  or  for  any  championship,  or 
upon  the  result  of  which  any  money  or  anything  of  value  is  bet 
or  wagered,  or  to  see  which  any  admission  fee  is  directly  or  in- 
directly charged." 

§  354.  Train  Robberies  in  Territories,  Etc. — Section  322  of  the 
New  Code  contains  all  of  the  elements  of  the  Act  of  July  first, 
1902,  and  is  in  the  following  words : 

"Sec.  322.  Whoever  shall  wilfully  and  maliciously  trespass 
upon  or  enter  upon  any  railroad  train,  railroad  car,  or  railroad 
locomotive,  with  the  intent  to  commit  murder,  or  robbery,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  imprisoned  not 
more  than  twenty  years,  or  both.  Whoever  shall  wilfully  and 
maliciously  trespass  upon  or  enter  upon  any  railroad  train,  rail- 
road car,  or  railroad  locomotive,  with  intent  to  commit  any  un- 
lawful violence  upon  or  against  any  passenger  on  said  train,  or 
car,  or  upon  or  against  any  engineer,  conductor,  fireman,  brake- 
man,  or  any  officer  or  employee  connected  with  said  locomotive, 
train,  or  car,  or  upon  or  against  any  express  messenger,  or  mail 
agent  on  said  train  or  any  car  thereof,  or  to  commit  any  crime 
or  offense  against  any  person  or  property  thereon,  shall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not  more 


348  CERTAIN  OFFENSES  IN  THE  TERRITORIES 

than  one  year,  or  both.  Whoever  shall  counsel,  aid,  abet,  or  assist 
in  the  perpetration  of  any  of  the  offenses  set  forth  in  this  section 
shall  be  deemed  to  be  a  principal  therein.  Upon  the  trial  of  any 
person  charged  with  any  offense  set  forth  in  this  section,  it  shall 
not  be  necessary  to  set  forth  or  prove  the  particular  person 
against  whom  it  was  intended  to  commit  such  offense,  or  that  it 
was  intended  to  commit  such  offense  against  any  particular  per- 
son." 

The  wilful  and  malicious  intent  cannot  be  inferred  from  any 
uncertain  statement  in  the  indictment.  It  must  be  specificallly 
alleged. 


CHAPTER  XVI. 
INTERNAL  REVENUE. 

§  355.  Eaising  of  Eeveniie,  Generally. 

356.  Trade  or  Business  Not  to  Be  Carried  on  Until  Revenue  Paid:  3232. 

357.  Partnerships:  3234. 

358.  Must  Exhibit  Stamps:    3239. 

359.  Rectifiers,    Liquor    Dealers,    Etc.,    Carrying    on    Business    Without 

Paying  Special  Tax,  Etc. :  3242—16. 

360.  C.  O.  D.  Decisions  Under  Above. 

361.  Fact  Cases. 

362.  Proof  of  License. 

363.  Distiller  Defrauding  or   Attempting  to   Defraud   United  States  of 

Tax  on  Spirits :  :    3257. 

364.  Breaking  Locks,  Gaining  Access,  Etc. :   3268. 

365.  Signs  to  Be  Put  Up  By  Distillers  and  Dealers  and  Other  Regula- 

tions:  3279,  3280,  3281,  3296. 

366.  Books  to  Be  Kept  by  Rectifiers  and  Wholesale  Dealers;   Penalty: 

3318. 

367.  Stamps  and  Brands  to  be  Effaced  from  Empty  Cask:  3324. 

368.  Re-use   of  Bottles,   Etc.,  Without  Removing  Stamps:    29  Stat.   L., 

627—6. 

369.  Removing   Any  Liquors   or   Wines   Under  Any   Other   Than   Trade 

Names;   Penalty:   3449. 

370.  Oleomargarine. 

§  355.  The  question  was  early  determined  by  the  Supreme 
Court,  in  the  license  tax  eases,  5  "Wallace,  462,  that  the  power  of 
the  United  States  Government  to  require  licenses  to  be  paid  be- 
fore a  given  business  could  be  carried  on  Avithin  a  State  was  not 
contrary  to  the  Constitution,  nor  against  public  policy.  The 
apparent  inconsistency  of  such  a  position  with  the  principle  that 
the  State  shall  have  exclusive  control  over  internal  commerce,  or 
its  own  domestic  trade,  is  only  apparent,  and  gives  way  to  the 
more  paramount  principle  that  each  Government,  State  and  Na- 
tional, has  such  inherent  powers  as  belong  to  sovereign  govern- 

349 


350  INTERNAL    REVENUE 

ments.  The  compliance  with  a  Federal  Internal  Revenue  tax 
statute  guarantees  no  rights  against  the  State  tax  statutes.  If 
there  be  a  tax  both  by  the  Federal  Government  and  by  the  State 
Government  upon  the  same  occupation,  each  tax  must  be  paid, 
and  the  paying  of  one  does  not  authorize  the  carrying  on  of  the 
business  with  immunity  from  prosecutions  by  the  other  power. 
So,  likewise,  the  punishment  of  one  who  fails  to  comply  with  the 
provisions  of  both  Governments  does  not  preclude  his  pimish- 
ment  by  the  other  Government  upon  the  doctrine  that  he  would 
be  twice  punished  for  the  .same  offense.  One  convicted  under  the 
State  law  for  selling  whiskey  without  license,  and  punished, 
could  also  be  convicted  and  punished  under  the  Federal  law  for 
the  same  offense.  In  Cross  vs.  North  Carolina,  132  IT.  S..  131,  33 
Law  Ed.,  287.  the  Supreme  Court  affirmed  doctrine  that  one  who 
forged  note  and  passed  it  into  books  of  National  Bank  to  deceive 
examiner  was  liable  to  prosecution  in  both  State  and  Federal 
Court. 

§  356.  Internal  Revenue  Offenses. — This  chapter  will  not  at- 
tempt to  deal  with  all  of  the  Federal  Internal  Revenue  offenses, 
but  only  such  statutes  as  are  mose  frequently  violated,  and  some 
of  which  are  difficult  to  find. 

Trade  or  Business  Not  to  be  Carried  On  Until  Tax  Paid. — Sec- 
tion 3232  of  the  Revised  Statutes  reads  as  follows : 

**Sec.  3232.  No  person  shall  be  engaged  in  or  carry  on  any 
trade  or  business  hereinafter  mentioned  until  he  has  paid  a  spe- 
cial tax  therefor  in  the  manner  hereinafter  provided." 

The  case  of  United  States  vs.  Clair,  2  Federal,  page  55,  which 
construes  Section  3232,  has  never  been  questioned  as  the  proper 
construction ;  that  is,  that  the  provisions  of  the  statute  leave  no 
room  for  doubt  that  the  tax  must  be  paid  in  advance.  The  busi- 
ness is  prohibited,  except  when  thus  licensed;  and  until  the  tax 
is  paid,  it  cannot  be  lawfully  pursued.  The  case  of  United 
States  vs.  Pressy.  1  Lowell,  319,  which  arose  during  the  Recon- 
struction Period,  and  which  contained  some  dicta  with  refer- 
ence to  carrying  on  the  business  after  an  application  for  assess- 
ment, will  not  be  confused  into  an  authority  contradicting  the 
Clair  case.  The  wording  of  the  statute,  and  the  entire  spirit 
thereof,  as  well  as  the  policy  of  the  Government  that  it  shall 


INTERNAL    REVENUE  351 

take  no  chances,  supports  the  construction  noted  in  the  Clair 
case.    The  license  must  be  first  secured. 

This  construction  is  further  sppported  by  the  case  of  the 
United  States  vs.  Angell,  11  Federal,  page  34,  wherein  the  Court 
held  that  a  receipt  for  a  license  tax  is  not  retroactive,  and  cannot 
be  admitted  in  evidence  on  the  charge  for  selling  spiritous  liquors 
by  retail  during  a  period  of  time  prior  to  its  date.  To  hold  other- 
wise, would  be  to  permit  the  violator  to  pay  his  tax  after  he  had 
become  a  dealer,  and  thus,  in  effect,  secure  a  pardon.  Judge 
Clark  says,  in  the  Angell  case : 

''Again,  the  penalty  had  been  incurred  before  the  payment  of 
the  tax,  and  the  receipt  given  would  not  operate  as  a  pardon. 
The  law  makes  no  provision  for  such  an  effect;  nor  could  the 
collector  of  taxes  confer  it.  The  collector  could  not  pardon  the 
offense;  the  President  alone  could  do  that." 

See  also  United  States  vs.  Van  Horn,  20  Internal  R.  E..  C, 
145;  U.  S.  vs.  Devilin,  6  Blatchf.,  71;  and  Section  53  of  the  Act 
of  October  first,  1890,  page  869,  First  Volume,  Supplement,  which 
contains  the  statement  that  the  tax  is  due  "on  commencing  any 
trade  or  business." 

§  357.  Partnerships. — By  Section  3234,  it  is  provided  that  any 
number  of  persons  doing  business  in  co-partnerships  at  one  place 
shall  be  required  to  pay  but  one  special  tax;  and  so  under  the 
authorities  of  United  States  vs.  Blab.  99  U.  S.,  228 ;  and  United 
States  vs.  Davis,  37  Federal,  468,  the  dissolution  of  such  part- 
nership, whereby  one  of  two  partners  who  has  paid  drops  out,  and 
the  remaining  member  of  the  firm  conducts  the  business,  a  new 
license  is  not  necessary.  If,  however,  a  new  partner  buys  into 
the  business,  a  new  tax  must  be  paid. 

§  358.  Must  Exhibit  Stamp.— Section  3239  of  the  Revised  Stat- 
utes reads  as  follows : 

"Ses.  3239.  Every  person  engaged  in  any  business,  avocation, 
or  employment,  who  is  thereby  made  liable  to  a  special  tax,  ex- 
cept tobacco  peddlers,  shall  place  and  keep  conspicuously  in  his 
establishment  and  place  of  business  all  stamps  denoting;  the  pay- 
ment of  said  special  tax ;  and  any  person  who  shall,  through  neg- 
ligence, fail  to  so  place  and  keep  said  [stamp]  [stamps] .  shall  be 
liable  to  a  penalty  equal  to  the  special  tax  for  which  his  business 
rendered  him  liable,  and  the  costs  of  prosecution ;  but  in  no  case 


; jf,{^  I N 'f • »';  I f  N  A  ( ,  If  I';  V  !•;  n  ( i  !•: 

f^liftll  fj/iMl  |.(M/illy  \>i-  \i-f'M  Mifiii  IcM  (lolhii-H,  Arifl  whore,  tho  fail- 
ore  l<t  fiiinuly  Willi  llic  \'()vcif(>\u^',  |»r()viMioii  ((f  hivv  Hhall  ho 
lliroiiKli  will'iil  ii»'hI''''I  "'*  rcriiiiiil,  IIkh  the  iicinilly  hIijiII  Ix;  dou- 
lilif  IliM  Mliioiiiil  tili(tv(^  |)i'i'(icnlti'(|  l'niriih<l,  Tliiil,  iiolliiii^  in  IhiH 
Mnclloii  mIiiiII  III  iKiy  wiiy  nllVci  I  In-  linhilily  of  jiriy  pcrrMon  for  ox- 
(W'clwlMj/  or  cMi'i'yifiK  <•••  "iiy  li"»i(l<",  l»iiHiiicMM,  or  |)rofcsHioji,  or  do- 
liiK  Miiy  del  for  llio  rHdrriMiiifr,  (•nrryiti>^  (»ii,  <>r  <loiiit^  of  which  u 
WJMKtllll   IMX   Iw  llli|Mi!ic(l   liy    Itiw,   wiIIhmiI    I  lie  piiyiiiciil    tlicl-cof." 

^  Mli't  llo(i|l(lrin,  l.i(|ii<)i  PruhMH,  V.\v..,  (Iiirryiiij^  on  Business 
Wlihniil.  rnyiiiy  H|HMi(nl  Tiik,  Kir.  ()|<l  Srrlinn  WWWl  of  Mir  \{v- 
vlwod  Hlllllllt'M  hccoiiM'M  Ity  the  Acl  {\^  Mnii'li  lliinl,  ISSi!,  p.ij^c  (iO, 
l''h'M|  Voldiin',  MiippliMiiriil ,  Srcliuii  HI,  which  |)i'ovi(lcs  pimish- 
llltMilw  for  IhoMc  \vhi»  cnny  on  I  he  hiiMiiicsM  of  n  rcclilicr,  whole- 
m\v  lii|iit>r  tlciilcf,  rclml  lii(\iiir  ilcnlcr,  wiinh-snlc  lii|ii(>i-  dciilci"  in 
nt/ill    liiplol'M,    rrlml    dr.ilri-    III    iii.'ill    ll(|llll^^;,    ov ,    111,11111 1'.icl  iil"(M'    of 

mIiIIm,    III     lIlC    follnW  llir.     ImIU'II.I!'.!' 

"  Hoo  It'  Thai  liny  pcrain  who  sh;ill  i\irry  on  |lu>  business  of 
H  roolillcr,  wholcMnh^  liquor  dealt-r,  retail  Inpior  ilealtM",  wholesale 
denier  ni  mall  lupiors,  retail  d«\'iler  m  malt  lupiors,  or  luannfac- 
lurer  of  >ililbi,  wtlhoni  having  paid  the  s|>eeial  tax  as  reqnii-ed  by 
Ihw,  or  who  .»<ludl  carry  oii  tlu*  bnsmess  (»f  a  distilK>r  without  hav- 
\\\^  ^'iv*M>  bvMul  MN  required  by  law,  or  who  shall  iMiir.'iiro  in  m* 
\MUM'y  \''\\  [\\\>  h\m\w».ik  of  n  distdU'r  with  intent  to  dt^fraud  tho 
I'uilod  SUdos  v»f  (ho  (n\  ou  (ho  spirils  distilUnl  bv  him.  or  any 
ptu'(  (horv>vd\  !sh{dl.  for  ovory  suoh  i^tVouso,  bo  tinod  i\ot  loss  than 
\v\u»  huuvlrovl  vUvUars  nor  uu>«v  th^ui  (ho  thousand  vloUars  and  im- 
pri!i*vvuod  uot  Kws  than  tlurt.v  dn>s  nor  uioiv  thau  two  yw\rs." 

Thv^  u?*o  v»f  thv>  wv>\\l  *'bu!!ii»u\sj;"  it\  tho  statute,  of  oourso.  ro- 
qviliHVM  it?*  use  iu  the  invUetuuMit  and  prwf  in  the  testimony.  It 
15*  nv»t  thv^  umKui^^  vvf  H  sate  ttvat  tlve  statute  denounot^<s  Kvauso 
vv\\«i^  \WH,v  v^»\Ty  vx»\  tlu^  bUvsiu«:Ns»4  without  ever  uuHkinii?  a  sale.  So. 
hWs  v^ne  uu\v  lunKe  a  sale  w  ithont  Ovsrryin^  on  the  business.  The 
!i*hI\^  v^nt\^\nou  is  the  U<\Uvtter  vU\n?^io«.  ITO  U.  $-.  c»i^:  42  l^w 
Kvi  V  \  \t^v  whWh  a^^ixrvA'xNs  tht!»  v>v>u\h>»\  v\f  Tuit^xl  St»tx>s  \-^  Ja«.*- 
Av*^  V  Uvi^hws.  ;\il,  Hnvl  Tnit^xl  is^tivlx^  vs.  Kenuevke.  v^  Federal. 
S4T.  tv^  th*!-*  ettwt  that. 

''WhiW  it  b;^s  KvT^  sv—ot'-'ws  ^o^*  that  ^xrv\>f  o.f  sak  t\>  oito? 
^VA'NvHV  vv5ks  ^  ot*  erimtnaKty.  the  r>?al 

vvt^\^V!^">  v%>*vv  x.s  .,.  V  .  -v.v     .\.>  iic^;  and  if  oaty  a  stoirfe 

^Iv  >v>Mr^  |>*v>Y^lv  •  v  a  ^\\l  defense  tv>  siww  tltat  ^at^ 


INTKItNM.    UKVKNIJM  :^r^]^ 

HiiUt  WJis  ('X(^(;i)1,i()H;i.l,  nctitidcnl;!!,  oc  rn;Hl(',  un<l<-c  hiu'.Ii  i:\rfAiu\Hiini- 
cos  aK  to  indicate!  thai  il,  was  not,  Uia  l)iisin<!HH  of  th<!  ((("("(^ndcr. " 

An  indiclnicnl,  iindcr  lliiH  Kcctiion  wlionld  alN^fj^c;  IIk;  ciic- 
ryin^  on  ol"  tin;  bii.sinc^HH,  IIm'  diiy  on  wliicJi  il,  wjih  rnrv\('(\  on,  I, Ik; 
town,  county,  and  diHtrict  in  wliidi  it  waH  (!Jirri<'d  on.  A  i'onn 
ol"  indi(!trn(!nt  will  he  loinid  lirrcin. 

i^  ;{00.  C.  0.  D.  DecisionH.  Tlic  am',  in  the  2'.i  H'cdcrai,  pajijc 
ll{4,  an(i  th(!  chhc  in  Ihc  'JO  i^'cdcrjd,  515,  caj-h  of  which  holds  th;d 
in  Hhii)nicnts  of  li(|nor,  (I.  ().  I).,  llic  ,slii|)|)<'i'  is  ;i  dc;d<'i'  ;d,  IIk; 
pl;i('(!  ol"  dcstin;dion,  an;  not  tin;  law.  liy  tin;  ninkinj^  ;ind  hcst 
liiK!  of  ;iiith<irili('s,  the  Hale  tak(;H  |)hice  ;d,  the  poird,  wh(;re  th<; 
Hp<!ci(ic,  (pijudity  is  H(tKref<ale(J  from  tin-  ni;iss;  ;iiid  ;is  this  t;d<es 
place  fit  the  poird,  Fr-oiti  whi<!h  tin;  li'jiior  in  Khippe<l,  the  author- 
ities are  that  the;  sale  tJikes  i)l!ic(!  there,  JUid  that  is,  DM-rcSovc,  tin; 
[)lace  wh(;r(!  tli<!  iictcfus*!  should  h(!  [)ai(J. 

In  i:ni1<-d  States  vs.  (nievalli(;r,  107  Kedend,  4'M,  the  Circuit 
(lourt  of  y\pp(!!dK  lor  the  Ninth  ("ir<',uit,  in  ;i  (tas<!  wh<!r(;  the  d(!- 
fernhird,  was  a  wholesale  liquor  dealer  in  S;in  Krarieisco,  who 
niiiinliiiiK'd  ;i  hrjuich  house  in  I'orthmd,  he;irin}^  his  sif^n,  ;uid 
where,  prcsuMi;d)ly,  s;iiri[>les  of  his  trade  were  l<e[)t,  and  when; 
the  puhlie  wi'vc  invited  to  purclijise,  the;  rtwiriaj^er  of  which  [thic*! 
wjis  }i  salesiMJin,  required  to  sijj  judiciously,  the  rir^ht  to  c;inec| 
his  contracts  hein^f  resei'Vftd  tf»  liis  f)rincipiil,  whf)  filhtd  ;dl  or 
df^rs,  nn(\  without  f»re[)}iyint(  the  j'rcti^lit,  delivered  the  ^^oods  to 
a  carrier  at  S;ui  P'rvuicisco,  <*onsi{^ned  to  purduisers  in  vJirioiis 
pfirts  of  the*  aj^ent's  territory:  Ixdd,  fluit  tin;  sales  wen;  rrijide 
wliolly  ;d  S;in  Krjinciscf),  notwithstandinj,?  the  a^ent  rruiy  li.ive 
he(!n  ;iiithori/,cd  to  ituikct  l)indin}<  (tontracts  ;ind  coll<M-t  I  lie  pur- 
chase  money,  and  tli;d  the  flefcndjint  w;is  not  suli.jecl  lo  tli<-  iider 
nal  r(!vcnuc  tax  as  an  Ore^^on  dcjiler,  even  thou^.d)  his  nielho*!  of 
transa(ttinK  husiness  nifiy  luive  hceu  di-vised  [)uri)os<'ly  to  ev;idc 
such  tax. 

Fn  United  Statcjs  vs.  Adams  Express  Co(n[);iny,  llf)  h\:(\(:rii\. 
240,  an  express  ef)rMp}iriy  wfis  c.har^ed  with  fxtin^  a  ret;nl  litpior 
dealer  on  a  stnte  of  facts  which  showed  tluil  it.  as  ;i  (rfumnon  car- 
rier, receivcfl  liquors  from  liquor  compJini(!S,  ;ind  r-jirrir-d  them  to 
the  consignee,  receiving  the  money,  whicli  it  tr;ins[)orted  to  the 


354  INTERNAL    REVENUE 

liquor  company.  The  Court  held  that  the  title  to  the  liquors 
passed  to  the  consignee  on  delivery  to  the  express  company,  and 
that  the  company  acted  as  the  vendee  in  carrying  the  liquor  and 
as  agent  of  the  vendor  in  collecting  the  money,  and  was  not. 
therefore,  a  dealer.  In  this  case,  Judge  McPherson  reviews  the 
authorities  known  as  the  C.  O.  D.  decisions,  and  holds  as  first 
indicated.  U.  S.  Sup.  Court,  May  13,  1907,  in  Adams  Express 
Company  vs.  Ky.,  holds  State  law  making  C.  0.  D.  sale  at  delivery 
point,  unconstitutional. 

In  Burk  vs.  Piatt,  172  Federal,  777,  the  Court  held  express 
companies  can  make  reasonable  regulations  refusing  C.  0.  D. 
shipments.  See  also  Jones  vs.  United  States,  170  Federal,  page 
1 ;  U.  S.  vs.  Lackey,  120  Federal,  57 ;  American  Express  Company 
vs.  Iowa,  196  U.  S.,  133;  O'Neil  vs.  Vermont,  144  U.  S. ;  and  U. 
S.  vs.  Parker,  121  U.  S.,  596. 

§  361.  Fact  Cases.— In  United  States  vs.  Allen,  38  Federal,  736. 
the  facts  showed  that  the  defendant  was  engaged  in  procuring 
and  furnishing  to  anyone  who  would  patronize  him,  liquors  in 
quantities  less  than  five  gallons.  He  testified  that  he  received  or- 
ders, requiring  the  person  ordering  to  pay  ten  cents  down  for  a 
bottle  of  beer,  and  when  the  beer  was  delivered,  an  extra  fifteen 
cents  as  remuneration  for  going  to  a  neighboring  State  to  pro- 
cure it ;  but  the  evidence  failed  to  show  that  the  defendant  bought 
specific  quantities  of  liquor  to  correspond  with  special  orders,  but 
showed  that  he  bought  beer  by  the  case,  and  paid  for  it,  and  sold 
it  to  anyone  desiring  it.  Held,  that  the  defendant  was  a  dealer 
under  this  section.     (Syllabus.) 

In  United  States  vs.  Woods,  28  Federal  Cases  No.  16759,  it  was 
held  that  a  club  formed  for  the  purpose  of  social  amusement,  own- 
ing spiritous  liquors,  keeping  them  for  use  by  the  members  of  the 
club,  who  were  entitled  to  such  use  upon  payment  to  the  janitor, 
which  money  went  into  the  treasury  of  the  Club,  the  janitor  was 
held  to  be  a  retail  dealer.  So,  also,  in  United  States  vs.  Alexis 
Club,  98  Federal,  725,  it  was  held  that  a  club  organized  for  social 
purposes  was  liable  to  the  payment  of  special  tax  as  retail  dealer, 
when  it  sold  drinks  to  its  members.  See  also  United  States  vs. 
Rolinger,  27  Federal  Case  No.  16190- A.    Neither  can  a  physician 


INTERNAL    REVENUE  355 

supply  spiritoiis  liquors  to  his  patients.  United  States  vs.  Smith, 
45  Federal.  115.  To  the  contrary  would  be  the  case  of  United 
States  vs.  Calhoun,  39  Federal  Keporter,  604,  which  decided  that 
an  apothecary  who  uses  spiritous  liquors  in  a  bona  fide  way,  ex- 
clusively in  the  preparation  of  making  up  medicines,  would  not 
be  subject  to  the  tax.  A  druggist,  however,  under  the  authority 
of  United  States  vs.  White,  42  Federal,  138,  is  to  be  weighed  by 
the  scales  of  good  faith,  to  ascertain  whether  he  is  using  intoxi- 
cants solely  for  the  compounding  of  medicines.  A  clerk  or  hired 
serv^ant,  not  acting  for  himself,  but  as  an  employee  of  another, 
will  not  be  convicted.  United  States  vs.  White,  42  Federal,  138 ; 
United  States  vs.  Logan.  26  Federal  Cases  No.  15624.  In  Quinn 
vs.  Diamond,  72  Federal.  993,  commission  merchants  who  made  a 
commission  upon  sales  of  liquors  were  held  to  be  dealers.  In 
United  States  vs.  I\rorfew,  136  Federal,  491,  the  Court  held  that 
a  druggist  who  sold  a  medicinal  preparation  which  contained 
more  alcohol  than  was  necessary  to  preserve  the  medicinal  prop- 
erties of  the  drugs  therein  contained,  became  liable  to  the  pay- 
ment of  the  tax  as  a  retail  liquor  dealer. 

In  United  States  vs.  Lewis,  decided  June  21,  1904,  the  Court 
determined  that  it  was  not  necessarj^  to  make  one  a  liquor  dealer, 
that  the  beverage  should  be  intoxicating.  Hop  ale  is  also  included 
in  the  term  of  the  statute  specifying  malt-liquor  dealers.  For 
decisions  with  reference  to  proprietarv^  medicines,  such  as  Digg's 
Appetizer,  Lemon  Ginger,  and  tonics,  see  United  States  vs.  Bray, 
113  Federal,  1009;  United  States  vs.  Starnes,  37  Federal,  665; 
United  States  vs.  Stubblefield,  40  Federal,  454;  United  States 
vs.  Cota,  17  Federal,  734.  In  South  Carolina  vs.  United  States, 
decided  by  the  Supreme  Court  on  December  5,  1905,  it  was  held 
that  even  a  State  must  pay  this  Federal  tax. 

§  362.  Proof  of  License. — Under  the  authority  of  IMorris  vs. 
LTnited  States,  161  Federal,  672,  the  prosecution  makes  out  its 
ease  by  proving  that  the  defendant  carried  on  the  business  at  a 
certain  time  and  place ;  the  payment  of  tax  being  a  matter  of  de- 
fense, which,  if  relied  upon,  must  be  proved  by  the  defendant. 

§  363.  Distiller  Defrauding  or  Attempting  to  Defraud  the  United 


356  INTERNAL    REVENUE 

States  of  Tax  on  Spirits. — Section  3257  of  the  Revised  Statutes  is 
in  the  following  words : 

' '  Sec.  3257.  Whenever  any  person  engaged  in  carrying  on  the 
business  of  a  distiller  defrauds  or  attempts  to  defraud  the  United 
States  of  the  tax  on  the  spirits  distilled  by  him,  or  of  any  part 
thereof,  he  shall  forfeit  the  distillery  and  distilling  apparatus 
iised  by  him,  and  all  distilled  spirits  and  all  raw  materials  for  the 
production  of  distilled  spirits  found  in  the  distillery  and  on  the 
distillery  premises,  and  shall  be  fined  not  less  than  five  himdred 
dollars  nor  more  than  five  thousand  dollars,  and  be  imprisoned 
not  less  than  six  months  nor  more  than  three  years." 

The  Court  held,  in  United  States  vs.  Ridnour,  119  Fed- 
eral, 401,  that  the  Act  establishing  bonded  warehouses,  dated 
JVIarch  third,  1877,  19  Statute  at  Large,  393,  did  not  repeal  this 
section.  This  same  case  also  held  that  apple  brandy  was  in- 
cluded in  the  general  terms  ''distilled  spirits." 

The  intent  to  defraud  must  exist  before  there  can  be  an  of- 
fense under  this  section.  United  States  vs.  100  Barrels  of  Spirits, 
2  Abbott,  305.  See  other  cases,  Dobbin 's  Distillery  vs.  United 
States,  96  U.  S.,  395 ;  United  States  vs.  Three  Copper  Stills,  47 
Federal,  495.  On  the  authority  of  Coffee  vs.  United  States,  116 
U.  S.,  445,  29  Law  Ed.,  684,  a  judgment  of  acquittal  in  a  criminal 
prosecution  for  violation  of  this  section  is  conclusive  in  favor  of 
the  defendant  as  a  claimant  of  the  property  involved  in  a  subse- 
quent suit  i)i  rem  mider  the  latter  part  of  the  statute.  See  also 
109  Barrels  of  Whiskey  vs.  United  States,  94  U.  S.,  86;  United 
States  vs.  Cushman,  1  Low..  414. 

§  364.  Breaking  Locks;  Gaining  Access  to  Cistern,  Etc.,  Penalty. 
— Section  3268  of  the  Revised  Statutes  reads  as  follows : 

"Sec.  3268.  Every  person  who  destroys,  breaks,  injures,  or 
tampers  with  any  lock  or  seal  which  may  be  placed  on  any  cistern- 
room  or  building  by  the  duly  authorized  officers  of  the  revenue, 
or  opens  said  lock  or  seal,  or  the  door  to  said  cistern-room  or 
building,  or  in  any  manner  gains  access  to  the  contents  therein, 
in  the  absence  of  the  proper  officer,  shall  be  fined  not  less  than  five 
hundred  dollars  nor  more  than  five  thousand  dollars,  and  be  im- 
prisoned not  less  than  one  year  nor  more  than  three  years." 

In  Pilcher  vs.  United.  States,  113  Federal,  248,  the  Circuit 
Court  of  Appeals  for  the  Fifth  Circuit  held  that  an  acquittal  of 


INTERNAL    REVENUE  357 

a  defendant  for  a  violation  of  Section  3296  of  the  Revised  Stat- 
utes did  not  preclude  prosecution  under  this  statute. 

§  365.  Signs  to  be  Put  Up  by  Distillers  and  Dealers,  and  Other 
Regulations. — Section  3279  of  the  old  Statutes  requires  that  dis- 
tillers and  wholesale  dealers  shall  keep  on  the  outside  of  the 
pace  of  such  business  a  sign  carrving  the  name  of  the  firm  and 
other  information. 

Section  3280  provides  that  the  distiller  shall  not  carry  on  busi- 
ness imtil  the  law  is  complied  with. 

Section  3281  provides  that  the  giving  of  bond  and  a  criminal 
punishment  if  this  is  not  done. 

In  Terry  vs.  United  States.  120  Federal  483,  the  Circuit  Court 
of  Appeals  for  the  Fourth  Circuit  held  that  an  indictment  for 
unlawfully  and  knowingly  carrying  and  delivering  raw  material 
to  a  distillery  was  insufficient  if  it  failed  to  state  that  such  distil- 
lery was  one  for  the  production  of  spirits,  and  was  also  insuffi- 
cient if  it  did  not  set  forth  the  kind  of  raw  material  which  was 
furnished. 

Section  3296  denomiees  the  removal,  concealment,  etc.,  of 
spirits  contrary  to  law,  and  fixes  a  penalty.  The  case  of  Pilcher 
vs.  United  States,  113  Federal,  248,  was  a  case  decided  under 
that  section. 

§  366.  Books  to  be  Kept  by  Rectifiers  and  Wholesale  Dealers; 
Penalty. — Section  3318  of  the  Revised  Statutes  provides  as  fel- 
lows: 

''Sec.  3318.  Every  rectifier  and  w^holesale  liquor  dealer  shall 
provide  a  book,  to  be  prepared  and  kept  in  such  form  as  may  be 
prescribed  by  the  Commissioner  of  Internal  Revenue,  and  shall, 
on  the  same  day  on  which  he  receives  any  foreign  or  domestic 
spirits,  and  before  he  draws  off  any  part  thereof,  or  adds  water 
or  anything  thereto,  or  in  any  respect  alters  the  same,  enter  in 
such  book  and  in  the  proper  columns  respectively  prepared  for 
the  purpose,  the  date  when,  the  name  of  the  person  or  firm  from 
whom,  and  the  place  whence  the  spirits  were  received,  by  whom 
distilled,  rectified,  or  compounded,  and  when  and  b,v  whom  in- 
spected, and,  if  in  the  original  package,  the  serial  number  of  each 
package,  the  number  of  wine-gallons  and  proof-gallons,  the  kind 
of  spirit,  and  the  number  and  kind  of  adhesive  stamps  thereon. 
And  every  such  rectifier  and  wholesale  dealer  shall,  at  the  time  of 
sending  out  of  his  stock  or  possession  any  spirits,  and  before  the 


358  INTER^AL    REVENUE 

same  are  removed  from  his  premises,  enter  in  like  manner  in  the 
said  book  the  day  whon  and  the  name  and  place  of  business  of 
the  person  or  firm  to  whom  such  spirits  are  to  be  sent,  the  quan- 
tity and  kind  or  quantity  of  such  spirits,  the  number  of  gallons 
and  fractions  of  a  gallon  at  proof,  and,  if  in  the  original  packages 
in  which  the,y  were  received,  the  name  of  the  distiller  and  the 
serial  number  of  the  package.  Every  such  book  shall  be  at  all 
times  kept  in  some  public  or  open  place  on  the  premises  of  such 
rectifier  or  wholesale  dealer  for  inspection,  and  any  revenue  offi- 
cer may  examine  it  and  take  an  abstract  therefrom;  and  when  it 
has  been  filled  up  as  aforesaid,  it  shall  be  preserved  by  such  rec- 
tifier or  wholesale  liquor  dealer  for  a  period  not  less  than  two 
years;  and  during  such  time  it  shall  be  produced  by  him  to  every 
revenue  officer  demanding  it.  And  whenever  any  rectifier  or 
wholesale  liquor  dealer  refuses  or  neglects  to  provide  such  book, 
or  to  make  entries  therein  as  aforesaid,  or  cancels,  alters,  obliter- 
ates, or  destroys  any  part  of  such  book,  or  any  entry  [thenn] 
[therein],  or  makes  such  false  entry  therein,  or  hinders  or  ob- 
structs such  revenue  officer  from  examining  such  book,  or  making 
any  entry  therein,  or  taking  any  abstract  therefrom;  or  when- 
ever such  book  is  not  preserved  or  is  not  produced  by  any  recti- 
fier or  wholesale  liquor  dealer  as  hereinbefore  directed,  he  shall 
pay  a  penalty  of  one  hundred  dollars,  and  shall  [on  conviction] 
be  fined  not  less  than  one  hundred  dollars  nor  more  than  five 
thousand  dolars,  and  imprisoned  not  less  than  three  months  nor 
more  than  three  years." 

In  the  case  of  Williams  vs.  United  States,  158  Federal,  30,  the 
Circuit  Court  of  Appeals  for  the  Eighth  Circuit  held  that  an 
indictment  under  this  section  need  not  set  out  the  quantity  of 
spirits  which  were  sent  out  without  being  recorded  in  the  book 
provided  for  in  the  statute,  because  the  quantity  sent  ovit  was  not 
the  essential  element,  and,  therefore,  an  indictment  charging  that 
the  defendant,  a  wholesale  liquor  dealer,  sent  out  of  his  stock 
two  casks  of  distilled  spirits,  without  making  any  required  en- 
tries, was  not  fatally  defective  in  failing  to  specify  the  quantity 
shipped.  Neither  need  the  indictment  specify  the  name  of  the 
consignee  or  the  place  where  the  casks  were  sent. 

In  the  cases  of  United  States  vs.  Amann.  24  Federal  Case  No. 
14438,  a  quantity  of  distilled  spirits,  3  Ben.,  552,  it  was  deter- 
mined in  substance,  that  if  it  was  a  mere  accidental  omission 
to  enter  in  the  record,  the  defendant  should  not  be  convicted,  but 
that  the  defendants  were  responsible  for  the  action  of  their  clerks 


[NTERNAL    REVENUE  359 

and  bookkeepers,  and  that  they  were  bound  to  see  that  their  du- 
ties with  reference  to  these  entries  was  fully  and  properly  per- 
formed; and  if,  through  the  neglect  or  carelessness  of  the  em- 
ployee, it  was  not  performed,  the  employer  was  responsible.  See 
also  United  States  vs.  1412  Gallons  of  Spirits,  10  Blatchf.,  428. 

§  367.  Stamps  and  Brands  to  be  Effaced  from  Empty  Casks. — 
Section  3324  of  the  Revised  Statutes  provides  as  follows: 

' '  Sec.  3324.  Every  person  who  empties  or  draws  off,  or  causes 
to  be  emptied  or  drawn  off,  any  distilled  spirits  from  a  cask  or 
package  bearing  any  mark,  brand,  or  stamp  required  by  law, 
shall,  at  the  time,  of  emptying  such  cask  or  package,  efface  and  ob- 
literate said  mark,  stamp,  or  brand.  Every  such  cask  or  package 
from  which  said  mark,  brand,  or  stamp  is  not  effaced  and  oblit- 
erated, as  herein  required,  shall  be  forfeited  to  the  United  States, 
and  may  be  seized  by  any  officer  of  internal  revenue  wherever 
found.  And  every  railroad  company  or  other  transportation 
company,  or  person  who  receives  or  transports,  or  has  in  posses- 
sion with  intent  to  transport,  or  with  intent  to  cause  or  procure 
to  be  transported,  any  such  empty  cask  or  package,  or  any  part 
thereof,  having  thereon  any  brand,  mark,  or  stamp,  required  by 
law  to  be  placed  on  any  cask  or  package,  or  any  part  thereof,  so 
received  or  transported,  or  had  in  possession  with  the  intent 
aforesaid ;  and  every  boat,  railroad  car,  cart,  dray,  wagon,  or 
other  vehicle,  and  all  horses  or  other  animals  used  in  carrying  or 
transporting  the  same,  shall  be  forfeited  to  the  United  States. 
Every  person  who  fails  to  efface  and  obliterate  said  mark,  stamp, 
or  brand,  at  the  time  of  emptying  such  cask  or  package,  or  who 
receives  any  such  cask  or  package,  or  any  part  thereof,  with  the 
intent  aforesaid,  or  who  transports  the  same,  or  knowingly  aids 
or  asists  therein,  or  who  removes  any  stamp  provided  by  law 
from  any  cask  or  package  containing,  or  which  had  contained, 
distilled  spirits,  without  defacing  and  destroying  the  same  at  the 
time  of  such  removal,  or  who  aids  or  assists  therein,  or  who  has 
in  his  possession  any  such  stamp  so  removed  as  aforesaid,  or  has 
in  his  possession  any  cancelled  stamp,  or  any  stamp  which  has 
been  used,  or  which  purports  to  have  been  used,  upon  any  pack- 
age of  distilled  spirits,  shall  be  deemed  guilty  of  a  felony,  and 
shall  be  fined  not  less  than  five  hundred  dollars  nor  more  than 
ten  thousand  dollars,  and  imprisoned  not  less  than  one  year  nor 
more  than  five  years. ' ' 

There  are  no  words  expressing  intention  with  reference  to  this 
offense  in  this  section,  and  under  the  authority  of  United  States 


360  INTERNAL    REVENUE 

VS.    Gallant,   177   Federal,   281,   an   inadvertant   and   negligent 
omission  to  do  the  things  demanded  by  the  section  is  an  offense. 

§  368.  Re-use  of  Bottles,  Etc.,  Without  Removing  and  Destroy- 
ing Stamps. — The  Act  of  March  third,  1897,  29  Statute  at  Large, 
627,  Section  6,  provides  as  follows: 

"Sec.  6.  That  any  person  who  shall  re-use  any  stamp  pro- 
vided under  this  Act  after  the  same  shall  have  been  once  affixed 
to  a  bottle  as  provided  herein,  or  who  shall  re-use  a  bottle  for  the 
purpose  of  containing  distilled  spirits  which  has  once  been  filled 
and  stamped  under  the  provisions  of  this  Act  without  removing 
and  destroying  the  stamp  so  previously  affixed  to  such  bottle,  or 
who  shall,  contrary  to  the  provisions  of  this  Act  or  the  regula- 
tions issued  thereunder  remove  or  cause  to  be  removed  from  any 
bonded  warehouse  any  distilled  spirits  inspected  or  bottled  under 
the  provisions  of  this  Act,  or  who  shall  bottle  or  case  any  spirits 
in  violation  of  this  Act,  or  of  any  regulation  issued  there- 
under, or  who  shall,  during  the  transportation  and  before  the 
exportation  of  any  such  spirits,  open  or  cause  to  be  opened, 
any  case  or  bottle  containing  such  spirits,  or  who  shall  wil- 
fully remove,  change  or  deface  any  stamp,  brand,  label,  or  seal 
affixed  to  any  such  case  or  to  any  bottle  contained  therein,  shall 
for  each  such  offense  be  fined  not  less  than  one  hundred  nor  more 
than  one  thousand  dollars,  and  be  imprisoned  not  more  than  two 
years,  in  the  discretion  of  the  court,  and  such  spirits  shall  be  for- 
feited to  the  United  States." 

In  United  States  vs.  Guthrie,  171  Federal,  528,  the  following 
points  with  reference  to  the  above  statute  were  determined: 

First.  The  offense  is  complete  if  the  bottle  is  re-used  without 
destroying  the  stamps,  and  does  not  depend  on  its  being  done 
knowingly  and  wilfully. 

Second.  The  employer  is  guilty  if  the  act  is  performed  by  his 
bartender  or  agent  acting  within  the  scope  of  his  employment. 

§  369.  Removing  any  Liquors  or  Wines  Under  any  Other  than 
Trade  Names;  Penalty. — Section  3449  of  the  Revised  Statutes 
reads  as  follows : 

"Sec.  3449.  Whenever  any  person  ships,  transports,  or  re- 
moves any  spirituous  or  fermented  liquors  or  wines,  under  any 
other  than  the  proper  name  or  brand  known  to  the  trade  as  desig- 
nating the  kind  and  quality  of  the  contents  of  the  casks  or  pack- 
ages containing  the  same,  or  causes  such  act  to  be  done,  he  shall 
forfeit  said  liquors  or  wines,  and  casks  or  packages,  and  be  sub- 
ject to  pay  a  fine  of  five  hundred  dollars." 


INTERNAL   REVENUE  361 

In  United  States  vs.  Twenty  Casks,  etc.,  133  Federal,  910,  the 
Court  held  that  this  section  did  not  apply  to  a  cask  shipped  with- 
out a  label,  nor  does  it  apply  when  the  cask  was  labeled,  ' '  Glass : 
with  care, "  etc.  In  United  States  vs.  Liquor  Dealers'  Supply  Com- 
pany, 156  Federal,  219,  the  Court  held  that  spirituous  liquors  un- 
der this  section  contained  in  bottles  and  packed  in  barrels,  and 

shipped  the  barrels,  being  marked  " "  in  violation  of 

this  section,  and  also  that  prosecutions  under  this  section  con- 
tained no  questions  of  fraud  or  fraudulent  intent.  This  case  was 
a  case  of  the  indictment  of  a  corporation  for  a  violation  of  this 
section.  See  also  United  States  vs.  Sandefuhr,  145  Federal, 
page  849. 

This  statute  has  been  held  not  to  apply  to  private  persons,  but 
only  to  distillers  and  dealers. 

§  370.  Oleomargarine.— The  Act  of  August  second,  1886,  24 
Statute  at  Large,  209,  is  what  is  kno\\Ti  as  the  Oleomargarine 
Act,  and  contains  a  definition  of  butter  and  oleomargarine. 

Section  3  of  the  Act  provides  a  schedule  of  special  taxes  upon 
manufacturers  of  six  hundred  dollars,  wholesale  dealers  of  four 
himdred  eighty  dollars,  and  retail  dealers  of  forty-eight  dollars. 
The  manufacturer  is  any  person  who  manufactures  oleomargar- 
ine for  sale,  and  also  any  person  who  mixes  with  oleomargarine 
any  artificial  coloration.  A  wholesale  dealer  is  any  person  who 
sells  or  offers  for  sale  oleomargarine  in  the  original  manufactur- 
er's packages;  and  the  retailer  is  any  person  who  sells  oleomar- 
garine in  quantities  of  less  than  ten  pounds  at  one  time. 

Section  4  of  the  Act  provides  the  penalties  for  the  carrjang 
on  of  the  business  without  the  payment  of  the  tax ;  that  is,  if  the 
manufacturer  carries  on  his  business  without  the  payment  of  his 
special  tax,  he  shall  be  fined  not  less  than  one  thousand  and  not 
more  than  five  thousand  dollars ;  the  person  who  carries  on  the 
business  of  a  wholesale  dealer  without  paying  the  special  tax, 
besides  being  liable  to  the  payment  of  the  tax,  shall  be  fined  not 
less  than  five  hundred,  nor  more  than  two  thousand,  dollars ;  and 
every  person  who  carries  on  the  business  of  a  retail  dealer  with- 
out paying  the  special  tax,  shall,  besides  being  liable  for  the  tax, 
be  fined  not  less  than  fifty,  nor  more  than  five  hundred,  dollars. 


362  IXTERNAL    REVENUE 

Section  6  is  for  packing  and  marking  oleomargarine,  and  pro- 
vides the  penalty,  and  reads  as  follows : 

"Sec.  6.  That  all  oleomargarine  shall  be  packed  by  the  man- 
ufacturer thereof  in  firkins,  tubs,  or  other  wooden  packages  not 
before  used  for  that  purpose,  each  containing  not  less  than  ten 
pounds,  and  marked,  stamped,  and  branded  as  the  Commissioner 
of  Internal  Revenue,  with  the  approval  of  the  Secretary  of  the 
Treasury,  shall  prescribe;  and  all  sales  made  by  manufacturers 
of  oleomargarine,  and  wholesale  dealers  in  oleomargarine  shall 
be  in  original  stamped  packages.  Retail  dealers  in  oleomargarine 
must  sell  only  from  original  stamped  packages,  in  quantities  not 
exceeding  ten  pounds,  and  shall  pack  the  oleomargarine  sold  by 
them  in  suitable  wooden  or  paper  packages,  w^hich  shall  be  marked 
and  branded  as  the  Commissioner  of  Internal  Revenue,  with  the 
approval  of  the  Secretary  of  the  Treasury,  shall  prescribe. 
Every  person  who  knowingly  sells  or  offers  for  sale,  or  delivers 
or  offers  to  deliver,  any  oleomargarine  in  any  other  form  than 
in  new  wooden  or  paper  packages  as  above  described,  or  w^ho 
packs  in  any  package  any  oleomargarine  in  any  manner  contrary 
to  law,  or  who  falsely  brands  any  package  or  affixes  a  stamp  on 
any  package  denoting  a  less  amount  of  tax  than  that  required  by 
law,  shall  be  fined  for  each  offense  not  more  than  one  thousand 
dollars,  and  be  imprisoned  not  more  than  two  years." 

Section  6,  above  quoted,  has  been  declared  to  be  Constitutional 
in  in  re  Kollock,  165  U.  S.,  526 ;  41  Law  Ed.,  813,  and  Dougherty 
vs.  United  States,  108  Federal,  56,  which  affirmed  IT.  S.  vs. 
Dougherty,  101  Federal,  439,  upon  the  reasoning  that  the  Act 
does  not  constitute  a  delegation  of  power  to  the  Commissioner  of 
Internal  Revenue  and  the  Secretary  of  the  Treasury  to  determine 
what  acts  shall  be  criminal,  but  the  Act  itself  sufficiently  detines 
the  offense,  by  requiring  the  packages  to  be  marked  and  branded, 
and  the  punishment  therefor,  leaving  the  mere  discretion  of  the 
particular  marks,  stamps,  and  brands  to  be  determined  by  the 
officers  aforesaid.  The  Supreme  Court,  in  the  Kollock  case,  said 
that  the  primary'  object  of  oleomargarine  legislation  was  to  secure 
revenue  by  internal  taxation,  and  to  prevent  fraud  in  the  col- 
lection of  such  revenue. 

in  the  case  of  Ripper  vs.  United  States,  178  Federal,  page  24, 
the  Circuit  Court  of  Appeals  held  that  evidence  secured  by  the 
unlaAvful  issuance  of  a  search  warrant,  which  was  itself  relevant 
was  not  inadmissible  because  obtained  by  such  illegal  search  and 


INTERNAL    REVENUE  363 

seizure ;  and  that  same  case  lield  that  in  order  to  constitute  the 
offense  of  neglect  or  refusal  to  destroy  the  stamp  from  the  emp- 
tied oleomargarine  package,  it  need  only  appear  that  the  package 
had  a  stamp  on  it  denoting  the  payment  of  the  tax;  that  it  was 
emptied  of  its  contents;  that  it  was  in  defendant's  possession  in 
its  emptied  condition ;  and  that  he  wilfully  neglected  or  refused 
to  destroy  the  stamp  while  the  empty  package  was  in  his  posses- 
sion. 

That  same  case  also  reasoned  that  the  Act  authorized  three 
classes  of  persons  to  conduct  the  business  of  manufacturing  and 
selling  oleomargarine ;  namely,  the  manufacturer,  the  wholesale 
dealer,  and  the  retail  dealer ;  and  that  section  6  declares  that  re- 
tail dealers  must  sell  only  from  original  stamped  packages,  in 
quantities  not  exceeding  ten  poimds,  and  that  the  restriction  on 
retail  dealers  violates  no  Constitutional  right,  and  that  persons 
selling  oleomargarine  at  retail  in  original  packages  in  quantities 
greater  than  ten  pounds  at  any  one  time  are  violators  ef  the  law, 
and  do  not  form  a  class  outside  of  its  provisions. 

In  this  case,  the  Court  also  held  that  the  penalty  provided  in 
Section  6  does  not  apply  to  that  part  of  the  section  prohibiting 
retail  dealers  from  selling  in  quantities  exceeding  ten  pounds, 
thousand  dollars,  without  imprisonment,  as  prescribed  by  Section 
18  of  the  Act,  which  reads  as  follows: 

"Sec.  18.  That  if  any  manufacturer  of  oleomargarine,  any 
dealer  therein,  or  any  importer  or  exporter  thereof  shall  Icnow- 
ingly  and  wilfully  omit,  neglect,  or  refuse  to  do,  or  cause  to  be 
done,  any  of  the  things  required  by  law  in  the  carrying  on  or 
conducting  of  his  business,  or  shall  do  anything  by  this  act  pro- 
hibited, if  there  be  no  specific  penalty  or  punishment  imposed  by 
any  other  section  of  this  act  for  the  neglecting,  omitting,  or  re- 
fusing to  do,  or  for  the  doing  or  causing  to  be  done,  the  thing  re- 
quired or  prohibited,  he  shall  pay  a  penalty  of  one  thousand 
dollars ;  and  if  the  person  so  offending  be  the  manufacturer  or  a 
wholesale  dealer  in  oleomargarine,  all  the  oleomargarine  owned 
by  him,  or  in  which  he  has  any  interest  as  owner,  shall  be  for- 
feited to  the  United  States." 

In  Dougherty  vs.  United  States,  108  Federal,  56,  the  Court  of 
Appeals  for  the  Third  Circuit,  in  passing  upon  the  case  originat- 
ing under  Section  6  of  the  Act,  said  that  the  section  first  requires 
manufacturers  to  pack  oleomargarine  in  new  wooden  or  paper 


364  INTERNAL   REVENUE 

packages,  marked,  stamped,  and  branded  as  prescribed ;  and 
sales  by  manufacturers  and  wholesale  dealers  are  also  required 
to  be  "in  original  stamped  packages."  Thereafter,  it  provides 
that  they  shall  pack  it  "in  suitable  wooden  or  paper  packages, 
marked  and  branded  as  prescribed."  The  penal  clause  thereof 
provides  that  every  person  who  knowingly  sells  oleomargarine 
otherwise  than  in  new  wooden  or  paper  packages  as  above  de- 
scribed, shall  be  fined,  and  held  that  such  clause  applied  to  retail 
dealers  as  well  as  others. 

The  Court  also  passed  upon  the  form  of  an  indictment. 

A  new  indictment,  in  conformity  with  the  ruling  of  the  Court 
in  United  States  vs.  Lockwood,  164  Federal,  772,  was  found,  and 
a  conviction  resulted,  which  conviction  was  affirmed  in  Lockwood 
vs.  United  States.  178  Federal,  437,  wherein  the  Court  re-affirmed 
the  Constitutionality  of  the  Act.  In  the  Lockwood  case,  164  Fed- 
eral, 772,  it  was  held  that  when  the  indictment  was  for  selling  in 
packages  that  were  not  as  prescribed  by  the  Commissioner  of  In- 
ternal Revenue,  the  particular  in  which  such  packages  did  not 
conform  therewith  should  be  set  out  in  the  indictment.  The  reg- 
ulations of  the  Commissioner  provide  that  retail  packages  must 
have  the  name  and  address  of  the  dealer  printed  or  branded 
thereon;  likewise,  the  words  "pound"  and  "oleomargarine"  in 
letters  not  less  than  one  quarter  of  an  inch  square,  so  as  to  be 
plainly  visible  to  the  purchaser  at  the  time  of  delivery  to  him, 
and  the  color  of  the  ink  must  be  in  the  strongest  contrast  to  the 
color  of  the  packages. 

In  Wesoky  vs.  United  States,  175  Federal.  333,  the  Circuit 
Court  of  Appeals  for  the  Third  Circuit  passed  upon  certain  evi- 
dence that  was  admitted,  and  holds  the  rulings  of  the  trial  judge 
not  erroneous,  in  an  oleomargarine  prosecution.  In  this  case  it 
was  held,  following  Graves  vs.  United  States,  105  U.  S.,  121,  37 
Law  Ed.,  1021,  that  the  wife  of  a  defendant  indicted  in  a  Fed- 
eral Court,  is  not  a  competent  witness. 

In  United  States  vs.  Lamson,  173  Federal,  673,  the  Court  held 
that  the  Oleomargarine  Act,  which  provides  that  wholesale  deal- 
ers shall  keep  such  books  and  render  such  returns  as  the  Internal 
Revenue  Commissioner  may  require,  did  not  limit  the  power  of 
the  commissioner  to  the  sole  making  of  regulations  requiring  the 


INTERNAL    REVENUE  365 

returns;  but  he  was  authorized  thereunder  to  adopt  regulations 
requiring  such  dealers  to  make  monthly  returns,  showing  the 
packages  and  pounds  received,  quantity  disposed  of.  and  the 
names  and  addresses  of  the  consignees,  and  that  such  regulation 
was  reasonable,  and  when  such  names  were  fictitious  and  erro- 
neous, there  was  a  violation  of  the  regulation. 

In  United  States  vs.  Union  Supply  Company,  the  Supreme 
Court  of  the  United  States,  in  an  opinion  rendered  November  8. 
1909,  held  that  a  corporation  was  a  person,  within  the  meaning  of 
Section  6  of  the  Act  of  Uay  9,  1902.  32  Stat.  L.,  193.  which  re- 
quired wholesale  dealers  in  oleomargarine  to  keep  certain  books 
and  make  certain  returns,  and  this  although  Section  5  of  the  same 
Act  applies  in  express  terms  to  corporations.  In  Vermont  vs. 
United  States,  174  Federal.  792,  the  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit  held  that  the  term  "any  person"  in  the  Act 
of  1886,  as  amended  by  the  Act  of  May  9,  1902,  is  not  limited  to 
licensed  wholesale  or  retail  dealers,  but  is  comprehensive  enough 
to  embrace  all  persons,  whether  licensed  dealers  or  not.  This 
case  also  affirms  the  doctrine  heretofore  mentioned  with  reference 
to  elements  of  that  portion  of  the  Act  relating  to  the  destruction 
of  stamps. 

In  United  States  vs.  Joyce,  138  Federal,  455,  the  Court  held 
that  that  portion  of  the  Act  of  1886  relating  to  the  payment  of 
tax  by  wholesale  dealers,  might  be  prosecuted  by  either  informa- 
tion or  indictment.  A  form  of  indictment  is  also  approved  in 
that  case  for  wholesale  dealers  who  do  not  pay  the  tax. 

In  United  States  vs.  Ford,  50  Federal,  467,  the  Court  held  that 
an  indictment  imder  Section  6  for  neglect  to  properly  mark  the 
package  of  oleomargarine  should  set  out  the  regulation  of  the 
commissioner  covering  the  marks  and  brands  in  substance. 

In  apparent  contradiction  of  Vermont  vs.  United  States.  174 
Federal,  cited  supra,  seems  to  be  the  case  of  Morris  vs.  United 
States,  168  Federal,  682.  In  the  Morris  case,  the  Circuit  Court 
of  Appeals  for  the  Eighth  Circuit,  in  passing  upon  Section  6  of 
the  Act  of  1886.  and  referring  to  the  words  "every  person," 
should  be  construed  to  refer  solely  to  manufacturers  and  dealers 
previously  therein  mentioned,  so  that  an  indictment  for  violating 
such  section  which  fails  to  charge  that  the  accused  was  either  a 


366  INTERNAL    REVENUE 

manufacturer  or  dealer  iu  oleomargarine  would  state  no  offense. 
The  safe  rule,  therefore,  is  to  allege  that  the  defendant  is  either 
a  manufacturer  or  a  wholesale  or  retail  dealer,  and  that  the  facts 
of  each  prosecution  will  substantiate  the  allegation ;  otherwise, 
there  should  be  no  prosecution. 

Prosecution  for  sale  and  delivery,  though  different  offenses,  if 
same  transaction,  may  be  under  different  counts  in  same  indict- 
ment, Goll  vs.  U.  S..  166  F.,  419. 

In  U.  S.  vs.  Eaton,  144  U.  S.,  688,  36  Law  Ed.,  591,  Sec.  18  of 
Act  requiring  certain  reports  and  books  by  wholesale  dealers  was 
held  inoperative. 


CHAPTER  XVII. 
NATIONAL  BANKS. 

§  371.  General  Provisions. 

372.  Falsely  Certifying  Checks:   5208. 

373.  Meaning  of  Word  "Wilfully"  in  the  Statute. 

374.  Acting  by  Others. 

375.  Embezzlement,    Abstraction,    Misapplication,    False    Entries:    5209. 

376.  Abstraction. 

377.  Misapplication. 

378.  False  Entries. 

379.  Other  Illustrative  Cases. 

§  371.  Any  number  of  persons  not  less  than  five  may  form  an 
association  for  the  purpose  of  conducting  a  national  bank.  The 
Articles  of  Association  and  organization  certificate  should  state 
the  name  assumed,  the  place  where  operations  are  to  be  carried 
on,  the  amount  of  capital  stock,  and  the  number  of  shares  thereof, 
the  names  and  residences  of  the  share-holders,  and  the  number 
of  shares  held  by  each.  When  these  dockets  are  filed  with  the 
Comptroller  of  the  Currency,  the  association  becomes  a  body  cor- 
porate, empowered  to  use  a  corporate  seal,  have  a  life  for  twenty 
years,  the  right  to  make  contracts,  to  sue  and  to  be  sued,  elect 
directors,  and  appoint  other  officers;  to  have  by-laws  which  are 
not  inconsistent  with  the  law  for  the  conduct  of  the  general  busi- 
ness, and  the  exercise  of  its  national  banking  privileges.  No 
other  bank,  of  course,  is  authorized  to  use  the  word  "national" 
as  a  portion  of  its  title.  An  association  may  exist  with  or  with- 
out power  to  use  circulation.  To  obtain  circulation  notes,  an  as- 
sociation must  deposit  with  the  Comptroller  of  the  United  States 
bonds  as  security  for  the  redemption  of  such  notes  as  it  may 
issue,  whereby,  within  limits,  notes  of  various  denominations  may 
be  furnished  by  the  Comptroller.  The  States  can  exercise  only 
such  control  over  national  banks  as  Congress  permits,  Farmers' 
National  Bank  vs.  Deering,  91  U.  S.,  33. 

367 


368  NATIONAL  BANKS 

The  sections  in  the  Revised  Statutes  relating  to  the  organiza- 
tion and  powers,  etc.,  of  national  banks  are  from  5133  to  5156, 
inclusive.  The  sections  in  the  Revised  Statutes  relating  to  the  ob- 
taining and  issuing  of  circulating  notes  are  from  5157  to  5189,  in- 
clusive. The  sections  relating  to  the  regulation  of  the  banking 
business  are  from  5190  to  5219,  inclusive.  The  sections  relating 
to  dissolution  and  receivership  are  from  5220  to  5243,  inclusive. 

§  372.  Falsely  Certifying  Checks.— Section  5208  of  the  Revised 
Statutes  of  1878,  which  rends  as  follows: 

"Sec.  5208.  It  shall  be  unlawful  for  any  officer,  clerk,  or 
agent  of  any  national  banking  association  to  certify  any  check 
drawn  upon  the  association  unless  the  person  or  company  draw- 
ing the  check  has  on  deposit  with  the  association,  at  the  time 
such  check  is  certified,  an  amount  of  money  equal  to  the  amount 
specified  in  such  check.  Any  check  so  certified  by  duly  authorized 
officers  shall  be  a  good  and  valid  obligation  against  the  associa- 
tion ;  but  the  act  of  any  officer,  clerk,  or  agent  of  any  association, 
in  violation  of  this  section,  shall  subject  such  bank  to  the  liabil- 
ities and  proceedings  on  the  part  of  the  comptroller  as  provided 
for  in  Section  fifty-two  hundred  and  thirty-four," 

relates  to  the  penalty  for  falsely  certifying  checks.  The  penal- 
ties of  the  section,  it  will  be  noted,  are  both  against  the  individual 
and  against  the  association.  The  comptroller  has  the  authority 
to  place  the  association  whose  officer  is  guilty  of  a  violation  of 
this  section,  in  the  hands  of  a  receiver,  as  provided  in  Section 
5234. 

This  section  includes  four  criminal  ojffenses:  first,  the  wilful 
certification  of  checks  drawn  upon  the  association  by  any  person 
or  company,  unless  such  person  or  company  has,  at  the  time  such 
check  is  certified,  on  deposit  with  the  association,  an  amount  of 
money  equal  to  the  amount  specified  in  such  check ;  second,  the 
resorting  to  any  device,  in  order  to  evade  the  provisions  of  the 
section;  third,  the  receipt  of  any  fictitious  obligation,  directly  or 
collaterally,  in  order  to  evade  the  provisions  of  the  section;  and 
fourth,  the  certifying  of  checks  before  the  amount  shall  have  been 
regularly  entered  to  the  credit  of  the  dealer  upon  the  books  of 
the  association. 

Anderson's  Dictionary  of  Law,  imder  the  head  of  the  words 
"Certified  Check,"  says  it  "implies  that  there  are  funds  in  the 


NATIONAL  BANKS  369 

bank  with  which  to  pay  it;  that  the  same  are  set  apart  for  its 
satisfaction ;  and  that  they  will  be  so  applied  when  the  check  is 
presented  for  payment." 

The  act  of  certifying  is  equivalent  to  an  acceptance  of  the 
check.  The  object  is  to  enable  the  holder  to  use  the  check  as 
money.  The  bank  charges  the  check  to  the  account  of  the  draw- 
er ;  credits  it  in  a  certified  check  account ;  and  when  paid,  debits 
that  account  with  the  amount.  The  bank  thus  becomes  the 
debtor  of  the  holder.  Merchants'  Bank  vs.  The  State  Bank,  10 
Wallace,  647;  Espy  vs.  Bank  of  Cincinnati,  18  Wallace,  619; 
Bank  vs.  Whitman,  94  U.  S.,  343;  same  case,  100  U.  S.,  689; 
Bank  of  British  North  America,  91  N.  Y.,  110.  It  will  be  borne 
in  mind  that  the  statute  relates  alone  to  ' '  check. ' '  Draft,  or  let- 
ter, or  telegram,  or  any  other  certificate  that  is  not  included  in 
the  technical  and  legal  term  "check,"  is  not  included  within  the 
statute. 

In  Potter  vs.  United  States,  155  U.  S.,  444;  39  Law  Ed.,  216, 
the  Supreme  Court  held  that  the  word  "certified,"  as  commonly 
understood,  implies  that  the  check  upon  which  the  words  of  cer- 
tification have  been  A\Titten  has  passed  from  the  custody  of  the 
bank  into  the  hands  of  some  other  party ;  and  when  the  charge  is, 
that  the  defendant  "did  unlawfully,  knowingly,  and  wilfully 
certify  a  certain  check,"  the  import  of  that  accusation  is  not 
simply  that  he  wrote  certain  words  upon  the  face  of  the  check, 
but  that  he  did  it  in  such  a  manner  as  to  create  an  obligation 
of  the  bank,  in  such  a  way  as  to  make  an  instrument  which  can 
properly  be  called  a  certified  check. 

§  373.  Wilfully.— The  use  of  the  word  "wilfully"  in  the  stat- 
ute implies  on  the  part  of  the  officer  who  commits  the  offense, 
knowledge  and  purpose  to  do  wrong.  Something  more  is  required 
than  the  act  of  certification  made  in  excess  of  the  actual  deposit 
but  in  ignorance  of  that  fact,  but  without  a  purpose  to  evade  or 
disobey  the  mandates  of  the  law.  In  Potter  vs.  United  States, 
cited  supra,  this  language  is  used  : 

"The  significance  of  the  word  "wilfully"  in  criminal  statutes 
has  been  considered  by  this  Court.  In  Felton  vs.  United  States, 
96  U.  S..  699,  24  Law  Ed.,  875.  it  was  said:  'Doing  or  omitting 
to  do  a  thing  knowingly  and  wilfully  implies  not  only  knowledge 


370  NATIONAL  BANKS 

of  the  thing,  but  a  determination,  with  a  bad  intent,  to  do  it. 
The  word  "wilful,"  says  Chief  Justice  Shaw,  in  the  ordinary 
sense  in  which  it  is  used  in  statutes,  means  not  merely  voluntary, 
but  with  a  bad  purpose.  Com.  vs.  Kneehmd.  20  Pick.  220.  It  is 
frequently  understood,  says  Bishop,  as  signifying  an  evil  intent 
without  justifiable  excuse,  I.  Bishop,  as  signifying  an  evil  intent 
and  later,  in  the  ease  of  Evans  vs.  Ignited  States,  153  TJ.  S.,  584. 
38  Law  Ed..  830.  there  was  this  reference  to  the  words  'wilfully 
misapplied':  'In  fact  the  gravamen  of  the  offense  consists  in  the 
evil  design  with  which  the  misapplication  is  made,  and  a  count 
which  should  omit  the  words  "wilfully,  etc.,  and  with  intent  to 

defraud,"  would  be  clearly  bad.' As  wilful  wrong  is  of 

the  essence  of  the  accusation,  testimony  bearing  directly  on  the 
question  of  wilfulness  is  of  vital  importance,  and  error  in  re- 
jecting it  cannot  be  regarded  otherwise  than  as  material  and 
manifestly  prejudicial." 

The  original  Potter  case,  which  was  treated  in  the  writ  of  error 
above,  will  be  found  in  56  Federal,  page  93.  The  Supreme 
Court,  in  Spurr  vs.  United  States.  174  V.  S.,  728,  hehl  that  the 
trial  judge,  in  answering  a  question  of  the  jury  in  a  prosecution, 
under  this  section,  when  they  came  in  after  consultation,  and 
asked  for  the  law  as  to  certification  when  no  money  appeared  to 
the  credit  of  the  drawer,  which  answer  failed  to  explain  the 
meaning  of  "wilful  violation,"  when  he  was  requested  so  to  do 
by  the  defendant's  counsel,  was  reversible  error. 

United  States  vs.  Heinze.  161  Federad,  425,  holds  that  Section 
5208  creates  no  criminal  offense  until  read  in  connection  with 
Section  13  of  the  Act  of  July  twelfth.  1882.  22  St.  L.,  166,  Sec- 
tion 13  of  said  Act  fixing  the  punishment.  Judge  Hough,  in  the 
Heinze  case,  said  that  Courts  were  bound  to  take  judicial  notice 
of  the  meaning  of  the  word  "certified"  as  applied  to  bank  checks, 
and  that  such  meaning  was  that  certain  words  have  been  written 
or  printed  on  a  cheek,  and  that  the  check  has  passed  from  the 
custody  of  the  bank  into  the  hands  of  some  other  party,  and  that 
thereby  the  person  certifying  created  an  obligation  of  the  bank. 
That  case  also  held  that  an  indictment  was  not  fatally  defective 
for  failure  to  set  out  tot  idem-  verbis  the  written  certifications  un- 
der the  rule  that  in  an  indictment  in  Federal  Courts  it  is  not 
necessary  to  allege  the  tenor  of  an  instrument,  unless  it  touches 
the  gist  of  the  crime,  such  rule  limiting,  in  the  Federal  Courts, 


NATIONAL  BANKS  371 

the  setting  out  in  full  of  the  instrument  mainly,  if  not  wholly,  to 
the  cases  of  forgery,  counterfeiting,  and  sending  threatening 
letters. 

§  374.  Acting  by  Others. — In  the  Heinze  case,  the  facts  as  al- 
leged in  the  indictment  were  that  the  defendant  did  not  certify 
in  the  sense  of  personally  signing  the  certification  stamped  on 
the  checks  in  question ;  and  a  motion  to  quash  was  made  upon  the 
ground  that,  therefore,  he  personally  could  not  be  indicted  under 
this  section.  The  Court  answered  this  objection  by  stating  that, 
"The  whole  indictment  taken  together  shows  that  the  first  fifteen 
counts  must  fail  unless  the  prosecution  can  prove  that  the  indi- 
viduals who  actually  executed  the  certification  endorsed  were 
but  the  physical  instruments  of  the  defendant  in  doing  what  was 
done ;  and  that  an  indictment  will  lie  for  causing  or  procuring  a 
coerced  subordinate  to  do  the  forbidden  act,  is  distinctly  held  by 
Judge  Putnam  in  the  Potter  case." 

^  375.  Embezzlement,  Abstraction,  Misapplication,  False  En- 
tries, Etc.,  Penalty. — By  long  odds,  the  most  important  Federal 
statute  for  the  preservation  of  the  people 's  property  and  the  in- 
tegrity of  the  national  banking  system,  is  Section  5209,  which 
reads  as  follows: 

"Sec.  5209.  Every  president,  director,  cashier,  teller,  clerk,  or 
agent  of  any  association,  who  embezzles,  abstracts,  or  wilfully 
misapplies,  any  of  the  moneys,  fmids,  or  credits  of  the  associa- 
tion ;  or  who,  without  authority  from  the  directors,  issues  or  puts 
in  circulation  any  of  the  notes  of  the  association  ;  or  who,  without 
such  authority,  issues  or  puts  forth  any  certificate  of  deposit, 
draws  any  order  or  bill  of  exchange,  makes  any  acceptance,  as- 
signs any  note,  bond,  draft,  bill  of  exchange,  mortgage,  .judg- 
ment, or  decree ;  or  who  makes  any  false  entry  in  any  book,  re- 
port, or  statement  of  the  association,  with  intent,  in  either  case, 
to  injure  or  defraud  the  association  or  any  other  company,  body 
politic  or  corporate,  or  any  individual  person,  or  to  deceive  any 
officer  of  the  association,  or  any  agent  appointed  to  examine  the 
affairs  of  such  association ;  and  every  person  who  with  like  intent 
aids  or  abets  any  officer,  clerk,  or  agent  in  any  violation  of  this 
section,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be  im- 
prisoned not  less  than  five  years  nor  more  than  ten." 

The  statute,  it  will  be  noted,  punishes  every  president,  direct- 
or, cashier,  teller,  clerk,  or  agent,  who   (1)   embezzles,    (2)   ab- 


372  NATIONAL  BANKS 

stracts,  (3)  wilfully  misapplies,  any  of  the  (1)  moneys,  (2) 
funds,  or  (3)  credits,  of  the  association.  In  other  words,  as 
stated  by  Terrell,  in  his  book  on  national  banking,  at  page  13,  the 
statute  covers  embezzlement  by  the  persons  named,  of  any  of  the 
moneys,  funds,  or  credits  of  the  association,  provided  such  em- 
bezzlement be  with  tlie  intent  to  injure  or  defraud  (1)  the  asso- 
ciation, (2)  any  other  company,  body  politic  or  corporate,  or  (3) 
any  individual  person.  The  word  "embezzle,"  as  used  in  this 
statute,  says  Terrell,  has  a  well-defined  technical  meaning.  It  is 
the  unlawful  conversion,  by  an  officer  of  a  bank,  to  his  own  use, 
of  the  moneys,  fimds,  or  credits  of  the  association  entrusted  to 
him,  with  the  intent  to  injure  or  defraud  the  bank.  United 
States  vs.  Youtzey,  91  Federal,  867.  It  involves  a  breach  of 
trust  or  duty  in  respect  of  the  moneys,  goods,  or  properties  en- 
trusted to  the  party's  possesion,  beionging  to  another,  and  also 
the  wrongful  appropriation  thereof  to  the  party's  own  use. 
Though  kin  to  theft  or  larceny,  embezzlement  is  a  separate  and 
distinct  offense.  In  order  to  constitute  this  crime,  it  is  necessary 
that  the  property,  money  or  personal  effects  embezzled  should 
have  previously  come  lawfully  into  the  hands,  possession,  or  cus- 
tody, of  the  party  charged  with  such  offense,  and  that  while  so 
entrusted  to  his  possession  and  custody,  and  held  for  the  use  and 
benefit  of  the  real  owner,  he  wrongfully  converts  the  same  to  his 
own  use,  United  States  vs.  Harper,  33  Federal,  474.  The  Su- 
preme Court,  in  Moore  vs.  United  States,  160  U.  S.,  269,  defines 
embezzlement  to  be  "The  fraudulent  appropriation  of  property, 
by  a  person  to  whom  such  property  has  been  entrusted,  or  into 
whose  hands  it  has  lawfully  come.  Such  custody  need  not  be 
actual,  manual  possession.  United  States  vs.  Harper,  33  Federal, 
475. 

In  United  States  vs.  Northway,  120  U.  S..  336 ;  30  Law  Ed., 
664,  the  Court  held  in  substance  that  the  wilful  and  criminal  mis- 
application of  the  fmids  of  a  national  bank,  as  defined  by  this 
section,  may  be  made  by  an  officer  or  agent,  without  having 
previously  received  them  into  his  manual  possession.  There  is  a 
distinction  between  said  offense  and  embezzlement.  In  the  former 
it  is  unnecessary  to  charge  possession  in  the  indictment,  while  in 


NATIONAL  BANKS  373 

the  latter  a  charge  of  possession  is  required  in  describing  the 
offense. 

§  376.  Abstraction. — The  president,  director,  cashier,  teller, 
clerk,  or  agent  of  any  national  banking  association  who  abstracts 
any  of  the  (1)  moneys,  (2)  funds,  or  (3)  credits,  of  the  associ- 
ation, with  the  intent  to  injure  or  defraud  (1)  the  association, 
(2)  any  other  company,  body  politic  or  corporate,  or  (3)  any 
individual  person,  is  guilty  of  abstraction.  Abstraction,  from 
definitions  taken  from  United  States  vs.  Eno,  56  Federal,  220, 
and  United  States  vs.  McKnight,  115  Federal,  972,  means  to  take 
or  withdraw  from;  so  that,  to  abstract  the  funds  of  a  bank,  or  a 
portion  of  them,  is  to  take  and  withdraw  from  the  possession  and 
control  of  the  bank  the  moneys  and  funds  alleged  to  be  so  ab- 
stracted. Such  abstraction  must  be,  of  course,  without  its  knowl- 
edge and  consent,  and  with  the  intent  to  injure  or  defraud  it  or 
some  other  person  or  company.  The  Supreme  Court,  in  speak- 
ing of  the  word  "abstraction"  in  the  Northway  case,  120  U.  S., 
says : 

' '  We  do  not  admit  the  proposition  that  the  offense  of  abstract- 
ing the  funds  of  the  bank  under  this  section  is  necessarily  equiv- 
alent to  the  offense  of  larceny.  The  offense  of  larceny  is  not 
complete  without  the  animus  furandi,  the  intent  to  deprive  the 
owner  of  his  property ;  but  imder  Section  5209,  an  officer  of  the 
bank  may  be  guilty  of  abstracting  the  funds  and  money  and 
credits  of  the  bank  without  that  particular  intent.  The  statute 
may  be  satisfied  with  an  intent  to  injure  or  defraud  some  other 
company  or  body  politic  or  corporate,  or  individual  person,  than 
the  banking  association  whose  property  is  abstracted,  but  merely 
to  deceive  some  other  officer  of  the  association  or  an  agent  ap- 
pointed to  examine  its  affairs.  This  intent  may  exist  in  a  case 
of  abstracting,  without  that  intent  which  is  necessary  to  consti- 
tute the  offense  of  stealing.  Previous  possession  is  not  necessary 
in  order  to  the  commission  of  this  offense.  United  States  vs. 
Harper,  33  Federal,  480.  In  United  States  vs.  Breese,  131  Fed- 
eral, 921,  abstraction  is  defined  as  the  act  of  one  who,  being  an 
officer  of  a  national  banking  association,  wrongfully  takes  or  with- 
draws from  it  any  of  its  moneys,  funds,  or  credits,  with  intent 
to  injure  or  defraud  it,  or  some  other  person  or  comnany,  and 
without  its  knowledge  and  consent.  It  may  be  done  by  one  act, 
or  by  a  succession  of  acts.    It  may  be  done  under  color  of  loans, 


374  NATIONAL  BANKS 

discounts,  checks,  or  the  like.     The  means  does  not  change  the 
nature  of  the  act." 

§  377.  Misapplication. — Wilful  misapplication  is  the  misapply- 
ing by  any  president,  director,  cashier,  teller,  clerk,  or  agent, 
etc.,  of  (1)  moneys,  (2)  funds,  or  (3)  credits  of  the  association, 
with  the  intent  to  injure  or  defraud  (1)  the  association,  (2)  any 
other  company,  body  politic  or  corporate,  or  (3)  any  individual 
person,  or  with  the  intent  to  deceive  (1)  any  officer  of  the  asso- 
ciation, or  (2)  any  agent  appointed  to  examine  the  affairs  of 
the  association.  Misapplication,  as  defined  by  the  Supreme 
Court  in  the  Northway  case,  120  U,  S.,  may  be  comprehended  by 
the  following  language: 

"In  order  to  misapply  the  fimds  of  the  bank,  it  is  not  neces- 
sary that  the  officer  charged  should  be  in  actual  possession  of 
them  by  virtue  of  a  trust  conunitted  to  him.  He  mav  abstract 
them  from  the  other  funds  of  the  bank  imlawfuUy,  and  after- 
wards criminally  misapply  them;  or,  by  virtue  of  his  official  re- 
lation to  the  bank,  he  may  have  such  control,  direction,  and 
power  of  management  as  to  direct  an  application  of  the  fimds  in 
such  a  manner  and  under  such  circumstances  as  to  constitute  the 
offense  of  wilful  misapplication.  And  when  it  is  charged,  as  in 
the  counts  of  this  indictment,  that  he  did  wilfully  misapply  cer- 
tain funds  belonging  to  the  association,  by  causing  them  to  be 
paid  out  to  his  own  use  and  benefit  in  unauthorized  and  unlawful 
purchases,  without  the  knowledge  and  consent  of  the  association, 
and  with  the  intent  to  injure  it,  it  necessarily  implies  that  the 
acts  charged  were  done  by  him  in  his  official  capacity,  and  by 
virtue  of  the  power,  control,  and  management  which  he  was 
enabled  to  exert  by  virtue  of  his  official  relation.  This,  we  think, 
completes  the  offense  intended  by  the  statute,  of  a  wilful  misap- 
plication of  the  moneys  and  funds  of  a  national  banking  asso- 
ciation. ' ' 

§  378.  False  Entries. — Every  president,  director,  cashier,  teller, 
clerk,  or  agent  of  any  national  banking  association  who  make  any 
false  entry  in  (1)  any  book,  (2)  any  report,  or  (3)  any  state- 
ment, of  the  association,  A\'ith  the  intent,  (1)  to  injure,  (2)  or 
defraud,  (1)  the  association,  (2)  or  any  company,  body  politic, 
or  corporate,  or  (3)  any  individual  person,  or  (4)  with  the  in- 
tent to  deceive  (1)  any  officer  of  the  association,  or  (2)  any 
agent  appointed  to  examine  the  affairs  of  such  association,  is 


NATIONAL  BANKS  375 

guilty  of  the  offense  of  making  false  entries,  within  the  meaning 
of  the  statute. 

It  will  be  borne  in  mind  that  Section  5211  of  the  Revised  Stat- 
utes provides  for  the  nuiking  of  five  reports  to  the  Comptroller 
of  the  Currency  of  the  condition  of  the  affairs  of  the  association, 
at  such  time  and  upon  such  dates  as  the  Comptroller  may  de- 
mand, and  it  is  of  these  reports  that  the  statute,  in  speaking  of 
false  entries  in  reports  relates. 

All  of  the  offenses  denounced  in  the  statute  rest  for  their  com- 
plete fulfillment  upon  the  "intent"  to  either  injure  or  defraud 
the  association,  or  any  other  company,  body  politic  or  corporate, 
or  any  individual  person,  or  to  deceive  any  officer  of  the  associa- 
tion, or  any  agent  appointed  to  examine  the  affairs  of  such  asso- 
ciation. This  intent  is  an  essential  ingredient  of  the  indictment 
and  the  offense,  U.  S.  vs.  Britton.  170  TT.  S.,  655;  United  States 
vs.  Voorhes,  9  Federal,  143;  :\IcKnight  vs.  U.  S.,  Ill  Federal, 
735.  The  cases  of  Agnew  vs.  United  States,  165  U.  S.,  36 ;  United 
States  vs.  Youtsey,  91  Federal  864;  United  States  vs.  Allis,  73 
Federal,  165;  Peters  vs.  United  States.  94  Federal,  127;  United 
States  vs.  Kenney,  90  Federal,  257 ;  and  Evans  vs.  United 
States,  153  U.  S..  584,  announce  no  new  doctrine  in  the  criminal 
law  when  they  hold,  in  substance,  that  such  intent  does  not  neces- 
sarily involve  malice  or  ill-will  tOAvard  the  l)ank,  for  the  law  pre- 
sumes that  a  person  intends  the  necessary  and  natural  conse- 
quences of  his  acts,  and  it  is  sufficient  that  the  wrongful  or  fraud- 
ulent act  will  necessarily  or  naturally  injure  or  defraud  the  bank 
as  set  forth  in  the  statute. 

In  Flickenger  vs.  I^ited  States.  150  Federal,  page  1,  the  Cir- 
cuit Court  of  Appeals  for  the  Sixth  Circuit  adopted  this  view, 
and  said : 

"There  could  be  no  proper  presumption  that  the  directors,  in 
the  ordinary  course  of  business,  would  consent  to  the  discount, 
by  the  president,  of  worthless  and  fictitious  paper,  with  intent  to 
injure  and  defraud  the  bank,  and,  therefore,  no  necessity  to  in- 
sert, in  the  indictment  an  averment  to  negative  such  authority." 

Any  entry  which  is  intentionally  made  to  represent  what  is 
not  true,  or  does  not  exist,  is  a  false  entry,  Agnew  vs.  United 
States,  165  U.  S.,  36.    An  entry  of  a  note  as  paid,  when  it  has 


376  NATIONAL  BANKS 

only  been  endorsed  by  the  bank  and  re-diseounted,  is  a  false 
entry,  Dorsey  vs.  United  States,  ]01  Federal,  746.  An  entrj^  as 
money  deposited  of  a  sum  of  money  left  with  the  bank  in  a  sack 
as  a  special  deposit,  is  a  false  entry,  United  States  vs.  Peters,  87 
Federal,  985.  The  entry  on  a  bank  book  of  a  transaction  just  as 
it  occurred,  although  such  transaction  be  a  fraud  on  the  bank, 
is  not  a  false  entry,  Dow  vs.  United  States,  82  Federal,  904 ;  U. 
S.  vs.  Young,  128  Federal,  111.  And  the  crime  of  making  false 
entries  may  be  committed  personally  or  by  direction,  and  an  of- 
ficer directing  the  making  of  false  entries  is  laible  therefor, 
Agnew  vs.  United  States,  165  U.  S.,  36;  United  States  vs.  Yout- 
sey,  91  Federal,  864 ;  Scott  vs.  United  States,  130  Federal,  429 ; 
United  States  vs.  AUis,  73  Federal,  165;  United  States  vs.  Har- 
per, 33  Federal,  480;  United  States  vs.  Fisk,  24  Federal, 
585;  5  Federal  Statutes  Annotated,  150.  Entries  in  the 
book  of  a  national  bank,  which  correctly  record  actual 
transactions  of  the  bank,  although  such  transactions  may  have 
been  unauthorized,  or  even  fraudulent,  are  not  false  entries,  and 
will  not  sustain  an  indictment.  Twining  vs.  United  States,  141 
Federal,  41.  That  the  including  of  an  account  of  an  accommoda- 
tion note,  given  to  cover  overdrafts,  in  a  report  made  to  the 
Comptroller  was  not  a  false  entry  within  the  meaning  of  the 
statute,  w^as  decided  by  the  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit  in  Hayes  vs.  United  States,  169  Federal,  101.  Any 
false  entry  made  in  a  report  to  the  Comptroller  is  within  the 
meaning  of  this  statute.  Cochran  vs.  United  States,  157  U.  S., 
293 ;  United  States  vs.  Bartow,  10  Federal,  874 ;  United  States  vs. 
Means,  42  Federal,  599 ;  United  States  vs.  Hughitt,  45  Federal, 
47;  United  States  vs.  Allen,  47  Federal,  696;  United  States  vs. 
French,  57  Federal,  382. 

In  Harper  vs.  United  States,  170  Federal,  385,  the  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit  held  that  the  section 
makes  it  a  criminal  offense  for  any  officer  or  agent  of  a  national 
bank  to  make  any  false  entry  in  a  report  of  the  association,  with 
the  intent  to  deceive  any  officer  of  the  association,  etc.,  whether 
the  report  was  voluntarily  made,  or  was  one  required  by  law,  if 
the  false  entry  was  made  with  the  requisite  unlawful  intent.  This 
case  also  passes  upon  the  sufficiency  of  an  indictment  and  its  re- 


NATIONAL  BANKS  377 

quisite  averments  in  the  matter  of  setting  out  the  report,  and 
holds  that  if  the  indictment  shows  the  date  upon  which  the  re- 
port Avas  made,  and  that  it  w^as  a  report  made  to  the  comptroller 
showing  resources  and  liabilities  on  a  certain  date,  it  is  sufficient 
to  authorize  the  presumption  that  it  was  a  report  made  by  the 
association  under  Section  5211. 

District  Judge  Sanborn,  in  United  States  vs.  Corbett,  162  Fed- 
eral, 687,  held  that  an  indictment  w'hich  charged  an  officer  of  a 
bank  with  making  a  false  entry  in  a  report  made  by  him,  "with 
intent  to  deceive  an  agent  appointed  to  examine  the  affairs  of  the 
association,  to  wit,  the  Comptroller  of  the  Currency  of  the 
United  States,"  did  not  charge  an  offense;  holding  that  the 
Comptroller  was  not  charged  with  the  duty  to  examine  national 
banks.  Without  accepting  this  doctrine  as  the  law,  it  is  sug- 
gested that  in  the  drafting  of  indictments  under  this  portion  of 
the  statute,  the  allegation  should  be  made  that  the  intent  was  to 
deceive  an  agent  appointed  to  examine  the  aft'airs  of  the  associa- 
tion, to  wit,  a  national  bank  examiner. 

In  United  States  vs.  Morse,  161  Federal,  429,  the  Court  held 
that  the  word  ' '  entry ' '  in  the  statute  means  ' '  any  item  in  an  ac- 
count." In  United  States  vs.  Wilson,  176  Federal,  806,  District 
Judge  Sheppard  held  that  the  intent  to  deceive  may  be  inferred 
from  the  making  of  the  entry,  and  such  false  entry  may  be  made 
either  personally,  or  by  direction.  In  Morse  vs.  United  States, 
17-i  Federal,  539,  the  Circuit  Court  of  Appeals  for  the  Second 
Circuit  affirmed  the  doctrine  that  false  entries  may  be  made  by 
direction.  In  other  words,  the  defendant,  in  that  case,  did  not 
make  the  entries  with  his  own  pen.  All  of  them  were  made  by 
the  employees  of  the  company,  as  a  part  of  their  routine  work. 
The  Court  held  that  it  was  wholly  immaterial  whether  such  offi- 
cer acts  through  a  pen  or  a  clerk  controlled  by  him. 

§  379.  Other  Cases.— In  United  States  vs.  Morse,  161  Federal, 
429,  the  Court  held  that  the  subsequent  return  of  the  money  was 
no  defense  to  a  prosecution  for  misapplication,  such  fact  being 
only  evidence  to  negative  the  officer's  intent  to  defraud  at  the 
time  of  the  alleged  offense,  and  thus  testimony  could  be  intro- 
duced for  jury  purposes.  In  United  States  vs.  Hillegass,  176 
Federal,  444,  will  be  found  a  copy  of  indictment  for  aiding  and 


378  NATIONAL  BANKS 

abetting  under  this  statute.  See  also  Brown  vs.  United  States, 
a  prosecution  for  aiding  and  abetting,  142  Federal,  page  2.  In 
Walsh  vs.  United  States,  174  Federal,  621,  the  defendant  was 
convicted,  and  his  conviction  was  affirmed  while  he  was  on  bond. 
After  the  affirmance,  the  United  States  filed  a  motion  to  have 
him  appear  and  show  cause  why  his  bail  should  not  be  set  aside. 
The  Court  refused  the  petition,  on  the  ground  that  no  unusual 
reason  was  shown  why  he  was  not  likely  to  remain  within  the 
jurisdiction  pending  a  motion  for  re-hearing  which  he  had  made. 
In  Walsh  vs.  United  States,  174  Federal,  615,  the  Court  held  that 
it  was  misapplication  for  an  officer  of  a  national  bank,  who  is 
also  a  promoter  of  various  enterprises,  to  obtain  the  funds  of  the 
bank  on  the  security  of  unmarketable  bonds  of  his  own  enter- 
prises at  the  risk  of  the  interests  of  the  bank.  In  that  case,  it  was 
also  determined  on  the  same  writ  of  error  that  a  juror  on  a  crim- 
inal case  cannot  afterwards  impeach  a  verdict  in  which  he  joined. 

In  Woods  vs.  United  States,  174  Federal,  651,  the  Circuit 
Court  of  Appeals  for  the  Fifth  Circuit  affirmed  the  well-estab- 
lished doctrine  in  a  bank  case  applicable  in  all  Federal  criminal 
cases,  that  a  general  verdict  and  judgment  on  an  indictment  con- 
taining several  counts,  cannot  be  reversed  on  error,  if  one  of  the 
counts  is  good  and  warrants  the  judgment. 

It  has  been  held,  of  course,  that  a  conspiracy  to  violate  this 
section  is  indictable  under  Section  5440  of  the  old  Code,  Scott  vs. 
United  States,  130  Federal,  429. 

For  a  definition  of  "moneys,  funds,  and  credits,"  see  United 
States  vs.  Smith,  152  Federal,  542.  w^hich  holds,  in  substance,  that 
the  word  ' '  moneys ' '  refers  to  the  currency  or  circulating  medium 
of  the  country ;  the  word  ' '  funds' '  refers  to  Government,  State, 
county,  mimicipal,  or  other  bonds,  and  to  other  forms  of  obli- 
gations and  securities  in  which  investments  may  be  made ;  and 
the  word  "credits"  refers  to  notes  and  bills  payable  to  the  bank, 
and  other  forms  of  direct  promises  to  pay  money  to  it. 

In  Thompson  vs.  United  States,  159  Federal.  80],  the  Circuit 
Court  of  Appeals  for  the  First  Circuit  approves  an  indictment 
against  a  cashier,  which  charged  that  that  officer  unlawfully 
"converted"  certain  moneys,  funds,  and  credits  to  the  use  of 
another.    The  Court  said : 


NATIONAL  BANKS  379 

"The  word  'convert'  lias  such  force  at  Common  Law  that 
when  used  in  an  indictment  with  a  statement  as  to  whose  use  the 
conversion  was  made,  it  needs  no  amplification,  anv  more  than  the 
word  'embezzle'  or  the  words  'take,  steal,  and  carry  away'  (cit- 
ing the  Jewett  case,  100  Federal,  832).  It  is  true  that  the  word 
'convert'  is  also  awkward  in  the  place  where  we  find  it  here,  but 
no  objection  was  attempted  on  that  ground,  and  its  use,  as  used 
here,  has  been  accepted  by  the  Supreme  Court  in  a  like  connec- 
tion for  the  same  purpose.  Cotfin  vs.  United  States,  156  U.  S., 
432,  39  Law  Ed.,  481;  same  case,  162  U.  S.,  666,  40  Law  Ed., 
1109.  The  word  'convert'  imder  the  circumstances,  must  be  ac- 
cepted as  intending  exactly  the  same  thing  as  when  spoken  in 
connection  with  the  use  of  the  person  who  was  guilty  of  the  con- 
version. ' ' 

In  the  case  of  United  States  vs.  Steinman,  172  Federal,  913, 
the  Circuit  Court  of  Appeals  for  the  Third  Circuit  held  that  wil- 
ful misapplication  of  the  funds  of  a  national  bank,  in  order  to 
constitute  an  offense  under  this  section,  must  be  a  wilful  misap- 
plication, for  the  use  or  benefit  of  the  accused,  or  of  some  person 
or  company  other  than  the  banking  association,  \Aath  intent  to 
injure  and  defraud  the  association,  or  some  other  body,  etc. ; 
being  entirely  different  from  facts  constituting  unofficial  malad- 
ministration, subjecting  the  bank  to  a  forfeiture  of  its  charter, 
and  an  unintentional  overdraft  by  a  depositor  in  good  standing 
and  possessing  ample  means  to  pay,  or  an  overdraft  to  be  paid 
pursuant  to  a  prior  agreement,  resting  on  abundant  credit,  does 
not  constitute  misapplication. 

In  that  case  also,  there  was  a  count  for  aiding  and  abetting, 
and  the  Court  held  that  in  a  prosecution  for  aiding  and  abetting 
the  officers  of  a  national  bank  to  wilfully  abstract  the  funds  of 
the  bank,  by  means  of  certain  overdrafts,  evidence  that  prior  to 
the  making  of  such  overdrafts,  it  was  agreed  that  the  bank 
should  furnish  funds  for  the  operations  of  certain  corporations, 
in  which  the  accused  and  the  bank's  president  and  cashier  w'ere 
officers,  and  that  from  time  to  time  notes  should  be  given  by  such 
corporations  to  take  up  the  overdrafts,  and  that  at  the  time  of  the 
advances  the  value  of  the  corporations'  property  was  more  than 
three  hundred  thousand  dollars,  while  the  overdrafts  aggregated 
only  thirty  thousand  dollars,  was  admissible  to  show  absence  of 
criminal  intent. 


CHAPTER  XVIII. 
BANKRUPTCY. 

§  380.  Section  29  of  the  Act. 

381.  Other  Offenses  of  the  Section. 

382.  Illustrative  Cases  and  Decisions. 

383.  Failure  to  Pay  Over  Money. 

§  380.  The  National  Bankrupt  Act,  passed  in  1898,  in  answer 
to  a  universal  demand,  and  under  the  authority  of  the  Constitu- 
tion, has  been  amended  twice  by  Congress  in  matters  that  do  not 
relate  to  its  criminal  sections.  Original  Section  29  of  the  Bank- 
rupt Act,  which  is  the  law  to-day  with  reference  to  offenses 
against  that. Act,  reads  as  follows: 

''Sec.  29.  a.  A  person  shall  be  punished,  by  imprisonment 
for  a  period  not  to  exceed  five  years,  upon  conviction  of  the 
offense  of  having  knowingly  and  fraudulently  appropriated  to 
his  own  use,  embezzled,  spent,  or  unlawfully  transferred  any 
property  or  secreted  or  destroyed  any  document  belonging  to  a 
bankrupt  estate  which  came  into  his  charge  as  trustee. 

h.  A  person  shall  be  punished,  by  imprisonment  for  a  period 
not  to  exceed  two  years,  upon  conviction  of  the  offense  of  having 
knowingly  and  fraudulently  (1)  concealed  Avhile  a  bankrupt,  or 
after  his  discharge,  from  his  trustee  any  of  the  property  belong- 
ing to  his  estate  in  bankruptcy;  or  (2)  made  a  false  oath  or  ac- 
count in,  or  in  relation  to,  any  proceeding  in  bankruptcy;  (3) 
presented  under  oath  any  false  claim  for  proof  against  the  es- 
tate of  a  bankrupt,  or  used  any  such  claim  in  composition  per- 
sonally or  by  agent,  proxy,  or  attorney,  or  an  agent,  proxy,  or 
attorney;  or  (4)  received  any  material  amount  of  property  from 
a  bankrupt  after  the  filing  of  the  petition,  with  intent  to  defeat 
this  act;  or  (5)  extorted  or  attempted  to  extort  any  money  or 
property  from  any  person  as  a  consideration  for  acting  or  for- 
bearing to  act  in  bankruptcy  proceedings. 

"  c.  A  person  shall  be  pimished  by  fine,  not  to  exceed  five  hun- 
dred dollars,  and  forfeit  his  office,  and  the  same  shall  thereupon 
become  vacant,  upon  conviction  of  the  offense  of  having  knowing- 
ly (1)  acted  as  a  referee  in  a  case  in  which  he  is  directly  or  in- 
directly interested;  or  (2)   purchased,  while  a  referee,  directly 

380 


BANKRUPTCY  381 

or  indirectly,  any  property  of  the  estate  in  bankruptcy  of  which 
he  is  referee;  or  (3)  refused,  while  a  referee  or  trustee,  to  permit 
a  reasonable  opportunity  for  the  inspection  of  the  accounts  relat- 
ing to  the  affairs  of,  and  the  papers  and  records  of,  estates  in  his 
charge  by  parties  in  interest  when  directed  by  the  court  so  to  do. 
"^.  A  person  shall  not  be  prosecuted  for  any  offense  arising 
under  this  act  unless  the  indictment  is  found  or  the  information 
is  filed  in  court  within  one  year  after  the  commission  of  the  of- 
fense, ' ' 

Section  a  of  the  Act  relates  alone  and  exclusively  to  punish- 
ment of  the  trustee  for  having  knowingly  and  fraudulently  ap- 
propriated to  his  own  use,  embezzled,  or  spent,  or  transferred,  or 
secreted,  or  destroyed  any  of  the  property,  or  any  document  be- 
longing to  an  estate  which  he  administers  as  such  oft'icer  of  the 
Court. 

A  satisfactory  indictment  imder  this  section  must  necessarily 
allege  an  adjudication,  the  time  and  date  of  the  appointment  of 
the  trustee,  and  his  qualification,  and  then  set  out  specifically 
the  property  he  is  charged  to  have  converted,  destroyed,  or  trans- 
ferred, as  fully  and  specifically  as  if  the  offense  was  for  larceny, 
with  the  exception  that  consent  of  the  bankrupt  is  unnecessary, 
for  the  reason  that  the  title  vests  in  the  trustee  under  the  satute. 
The  section  includes  not  only  an  apropriation  to  the  trustee's 
own  use,  but  an  imlawful  transfer  of  the  property  for  the  use  of 
another.  It  is  true  the  word  "unlawfully"  as  used  with  refer- 
ence to  the  transfer  would  perhaps  include  some  sort  of  a  gain 
or  motive  beneficial,  or  supposedly  beneficial  to  the  trustees.  If, 
however,  the  proof  showed  a  reckless  disregard  of  his  obliga- 
tions and  duties  as  trustee,  in  the  way  of  wilful  destruction  or 
secretion  of  the  property  or  documents  of  the  estate,  manifestly 
for  the  purpose  of  defeating  a  proper  administration  of  the 
trust,  a  case  would  be  made  out  under  this  section. 

§  381.  Other  Offenses  of  the  Section. — Paragraphs  1,  2,  and  5, 
of  sub-division  h  of  Section  29,  relate  to  offenses  committed  by 
the  bankrupt.  Paragraphs  2,  3,  4,  and  5  of  sub-division  h  of  Sec- 
tion 29,  create  offenses  that  may  be  committed  by  persons  who  are 
not  bankrupts.  Section  c  of  sub-division  h  of  Section  29  relates 
to  offenses  by  the  referee  in  bankruptcy,  and  sub-division  d  of 
the  section  creates  a  particular  statute  of  limitation  for  all  the 


382  BANKRUPTCY 

bankrupt  offenses  described  in  the  entire  section,  to  wit,  that  the 
indictment  must  be  foimd,  or  the  information  filed,  within  one 
year. 

§  382,  Decisions. — An  indictment  in  the  terms  of  the  section, 
which  charges  the  knowing  and  frauduh^nt  conceahiient,  while 
a  bankrupt,  or  after  his  discharge,  from  his  trustee,  of  any  of 
the  property  belonging  to  his  estate  in  bankruptcy,  sets  forth  the 
elements  of  the  offense,  and  is  sufficient.  United  States  vs.  Com- 
stock,  161  Federal,  644.  It  is  not  necessary  to  allege  in  the  in- 
dictment that  the  bankrupt,  at  the  time  of  the  concealing  of  his 
property,  knew  either  the  fact  that  a  trustee  had  been  appointed 
for  his  estate,  or  the  name  of  such  trustee.  United  States  vs. 
Comstock,  161  Federal,  644. 

The  word  "conceal"  as  used  in  the  section,  is  of  plain  import, 
and  when  coupled  in  an  indictment  with  the  words  "unlawful, 
knowingly,  and  fraudulently,"  clearly  excludes  unintentional 
acts,  United  States  vs.  Comstock,  161  Federal,  644.  The  of- 
fense of  concealing  property,  by  a  bankrupt,  from  his  trustee, 
consists  of  a  continuous  concealment  of  the  property  from  the 
trustee  during  the  whole  course  of  the  l)ankruptcy  proceedings, 
or  beyond,  and  is,  therefore,  not  necessarily  consummated  by  an 
omission  of  the  property  from  the  schedules,  Johnson  vs.  United 
States,  163  Federal,  30. 

In  an  indictment  against  a  bankrupt  and  others  for  a  con- 
spiracy to  conceal  assets  of  the  estate  from  liis  trustee  in  bank- 
ruptcy, an  averment  that  the  trustee  was  "duly"  appointed 
trustee  is  sufficient;  the  matter  of  appointment  being  an  inci- 
dental matter  only,  and  not  a  vital  element  of  the  crime. 

In  United  States  vs.  Lake,  129  Federal,  499,  Judge  Treber 
held,  on  demurrer,  that  an  indictment  against  the  president  of 
a  bankrupt  corporation,  for  making  a  false  oath  to  its  schedules, 
which  showed  that  the  defendant,  as  its  president,  in  compliance 
with  the  bankrupt  law,  did  file  in  the  bankruptcy  proceedings, 
with  the  referee,  the  schedules  required  by  law,  subscribed  and 
sworn  to  by  him,  as  president ;  that  the  defendant  stated  on  his 
oath  that  such  schedules  contained  a  true  and  complete  state- 
ment of  all  the  corporation 's  property ;  and  that  the  state- 
ment that  the  bankrupt  corporation  had  then  on  hand  only  the 


BANKRUPTCY  383 

sum  of  a  hundred  dollars,  which  was  all  the  money  the  corpora- 
tion then  and  there  had, — was  false,  such  an  indictment  followed 
the  strict  language  of  the  Act,  and  sufficiently  showed  the  ma- 
teriality of  the  false  statement,  without  the  express  averment 
thereof. 

An  indictment  for  conspiracy  to  fraudulently  conceal,  etc., 
property  from  a  trustee,  is  not  insufficient  because  it  charges 
that  the  property  was  removed  and  concealed  prior  to  the  bank- 
ruptcy, where  it  also  avers  that  the  concealment  was  continued 
after  the  bankruptcy,  and  after  the  appointment  of  the  trustee, 
and  that  the  property  was  not  scheduled  by  the  bankrupt. 

A  charge  of  conspiracy  to  conceal,  etc.,  may  be  supported  by 
evidence  that  the  property  was  sold  under  a  chattel  mortgage, 
given  by  the  bankrupt  prior  to  the  bankruptcy,  where  it  is 
shoMTi  that  such  mortgage  and  sale  were  merely  colorable,  and 
that  the  property  in  fact  remained  that  of  the  bankrupt.  In 
United  States  vs.  Grodson,  164  Federal,  157,  the  Cohen  case  is 
affirmed,  but  Judge  Sanborn  holds  that  an  indictment  charging 
a  conspiracy  to  sell.  etc..  where  it  .shows  that  the  conspiracy  was 
formed  and  the  property  removed  and  concealed,  prior  to  the 
bankruptcy,  but  does  not  aver  that  it  was  in  contemplation  of 
bankruptcy,  or  that  any  overt  act  w^as  committed  after  the  bank- 
ruptcy, although  it  charges  a  further  conspiracy  thereafter  to 
continue  the  concealment,  is  insufficient.  The  officer  of  a  bank- 
rupt corporation,  who  is  not.  and  has  not  been,  a  bankrupt,  is  not 
liable  under  this  section  for  having  fraudulently  and  knowingly 
concealed  the  property  of  the  estate  of  the  corporation  in  bank- 
ruptcy from  its  trustee.  The  present  or  past  bankruptcy  of  the 
accused  is  an  indispensable  element  of  the  offense  denounced  by 
the  statute.  A  penal  statute  which  creates  and  denounces  a  new 
offense,  must  be  strictly  construed.  "Where  it  is  plain  and  unam- 
biguous, the  courts  may  not  lawfully  extend  it  by  interpretation, 
to  a  class  of  persons  who  are  excluded  from  its  effect  by  its  terms. 
for  the  reason  that  their  acts  may  be  as  mischievous  as  those  of 
the  class  whose  deed  it  denounces.  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit,  in  Field  vs.  United  States.  137  Federal, 
page  6. 

To  the  same  effect  is  United  States  vs.  Lake,  129  Federal,  499. 


384  BANKRUPTCY 

where  it  was  held  that  paragraph  h  of  the  Act,  providing  that  a 
person  shall  be  punished  on  conviction  for  having  knowingly  and 
fraudulently  concealed,  while  a  bankrupt,  or  after  his  discharge, 
from  his  trustees,  any  of  the  property  belonging  to  his  estate  in 
bankruptcy,  must  be  strictly  construed,  and  does  not  include  offi- 
cers of  a  corporation  declared  a  bankrupt.  A  bankrupt  corpora- 
tion may  commit  the  criminal  offense  of  knowingly  and  fraudu- 
lently concealing  its  property  from  its  trustee,  defined  and  made 
punishable  by  the  Act,  and  individuals  who  conspire  to  cause  a 
corporation  to  commit  such  offense  are  indictable  under  old  Sec- 
tion 5440,  and  it  is  immaterial  that  the  corporation  is  not.  or 
cannot  be,  indcted  as  one  of  the  conspirators.  Circuit  Court  of 
Appeals  for  the  Second  Circuit,  in  Cohen  vs.  United  States,  157 
Federal,  651. 

From  the  above  decisions,  will  be  drawn  this  line  of  law.  to  wit : 

First,  that  an  officer  of  a  banking  corporation  cannot  be  in- 
dicted for  concealing  the  property  of  the  bankrupt  from  the 
trustees,  because  he,  the  officer,  is  not  the  bankrupt. 

Second,  The  corporation  may  be  indicted  for  concealing  this 
property  from  the  bankrupt. 

Third,  Individuals  who  conspire  to  conceal  the  property  of  a 
bankrupt  corporation  may  be  indicted  for  an  offense  under  the 
general  conspiracy  statute,  which  was  old  Section  5440,  as 
amended. 

The  case  of  Johnson  vs.  United  States,  170  Federal,  581,  by  the 
Circuit  Court  of  Appeals  for  the  First  Circuit,  permits  the 
trustee  in  bankruptcy  to  testify  that  he  had  never  learned  from 
the  bankrupt  that  there  was  property  belonging  to  the  bankrupt 
stored  in  the  places  where  the  goods  covered  by  the  indictment 
were  found,  and  that  the  trustee  himself  found  the  goods  in 
question,  apparently  without  the  assistance  of  the  bankrupt,  even 
though  such  testimony  was  objected  to  on  the  ground  that  it  was 
an  attempt  to  disclose  the  bankrupt's  testimony  before  the 
referee.  The  decision  distinguishes  the  cases  of  Jacobs  vs.  United 
States,  161  Federal,  694,  and  Johnson  vs.  United  States,  163  Fed- 
eral, page  30,  which  two  cases  those  respective  courts  held  to  be 
indirect  methods  of  introducing  the  bankrupt's  schedule  of  as- 
sets and  liabilities  against  him  in  criminal  cases;  the  Johnson 


BANKRUPTCY  385 

and  Jacobs  cases  holding  that  this  cannot  be  done,  of  course, 
directly  or  indirectly. 

The  Circuit  Court  of  Appeals  for  the  First  Circuit,  in  Kerrch 
vs.  United  States,  171  Federal,  366,  held  that  on  the  trial  of  an 
involuntary  bankrupt  for  conspiracy  to  conceal  property  from 
its  trustees,  it  was  not  error  to  admit  in  evidence,  over  the  de- 
fendant's objection  and  claim  of  privilege,  his  books  of  account, 
which  had  been  taken  possession  of  by  a  receiver  appointed  by 
the  bankruptcy  court. 

In  Wechsler  vs.  United  States,  158  Federal,  579,  the  Circuit 
Court  of  Appeals  for  the  Second  Circuit  held  that  Section  7  of 
the  Bankrupt  Act,  which  requires  the  bankrupt  to  submit  to  an 
examination  under  oath  as  to  various  matters  specified,  with  the 
proviso  that  "no  testimony  given  by  him  shall  be  offered  in  evi- 
dence against  him  in  any  criminal  proceeding,"  does  not  give 
immunity  from  prosecution  for  giving  false  testimony  upon  any 
such  examination.  That  case  further  holds  that  if  there  be  false 
testimony  upon  such  examination,  it  may  be  prosecuted  under 
the  old  perjury  statute,  which  was  old  Section  5392,  or  under 
the  bankrupt  statute,  now  being  considered,  for  making  a  false 
oath.  See  also  United  States  vs.  Bartlett,  for  perjury  in  sched- 
ules, 106  Federal,  page  884;  and  for  other  cases  bearing  upon 
this  section.  United  States  vs.  Owen,  32  Federal,  534;  United 
States  vs.  Bozer,  4  Dillon,  407 ;  also  cases  in  5  Federal,  681,  and 
7  Federal,  715;  United  States  vs.  Jackson,  2  Federal,  502;  Uni- 
ted States  vs.  Bayer,  4  Dillon,  407,  Federal  Case  No.  14547 ;  Uni- 
ted States  vs.  Houghton,  14  Federal,  544.  In  Johnson  vs.  United 
States,  158  Federal,  page  69,  the  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit  reversed  a  judgment  of  conviction  and  dis- 
missed the  indictment  and  discharged  the  defendant  under  an 
indictment  which  charged  a  conspiracy  under  old  Section  5440. 
to  conceal  property  from  the  trustee,  where  the  indictment  al- 
leged that  the  conspirators  were  the  trustee,  the  bankrupt,  and 
a  third  party ;  the  bankrupt  and  the  third  party  having  been 
convicted.  The  Court  of  Appeals  dismissed  the  indictment,  and 
discharged  the  trustee,  holding  that  the  trustee  could  not  con- 
spire to  conceal  from  himself.  A  consideration  of  this  opinion 
is  advised,  together  with  the  reasoning  in   Cohen  vs.  United 


386  BANKRUPTCY 

States,  157  Federal,  651,  where  the  Court  of  Appeals  for  the 
Second  Circuit  held  that  in  a  conspiracy  prosecution,  it  was  im- 
material that  the  corporation  is  not,  or  cannot  be,  indicted  as  one 
of  the  conspirators;  also  with  the  case  of  3  Howells'  State  Trials, 
402,  where  a  husband  was  convicted  for  conspiring  to  rape  his 
own  w^ife.  even  though  he  himself  could  not  commit  such  rape. 

§  383.  Failure  to  Pay  Over  Money. — From  the  power  of  a 
court  of  equity,  administering  the  Bankrupt  Statute,  to  require 
the  bankrupt  to  pay  over  money  or  other  property  shown  clearly 
to  be  in  his  possession,  or  go  to  jail  for  contempt,  has  arisen  what 
may  be  termed  another  criminal  feature  of  the  law.  One  of  the 
earliest  cases  under  this  power  of  the  statute  is  in  re  Purvine, 
96  Federal,  192,  wherein  a  commitment  to  the  Dallas  County 
Jail,  by  District  Judge  Meek,  of  the  bankrupt  for  failure  to  pay 
over  certain  funds  shown  to  be  in  the  possession  of  the  bankrupt, 
was  affirmed  by  the  Circuit  Court  of  Appeals  for  the  Fifth  Cir- 
cuit.   In  that  opinion,  the  Court  says: 

"If  the  court  of  bankruptcy  is  powerless  in  this  respect,  per- 
sons, by  becoming  bankrupts,  obtain  an  immunity  not  allowable 
in  an}^  other  court  of  equal  dignity,  either  Federal  or  State,  in 
this  country." 

A  similar  jurisdiction  was  invoked  under  the  Act  of  1867. 

In  in  re  Mize  et  cd,  172  Federal,  945,  District  Judge  Grubb 
maintains  the  same  power,  and  cites  a  number  of  similar  decis- 
ions, and  holds : 

"The  courts  have  been  very  careful  not  to  permit  contempt 
proceedings  to  be  converted  into  a  means  of  coercing  payment 
of  debts  from  funds  other  than  assets  wrongfully  wnthheld  by  the 
bankrupt,  and  for  this  reason,  have  required  the  clearest  evidence 
that  the  bankrupt  had  the  assets  in  his  possession,  and  the  pres- 
ent ability  to  turn  them  over  to  the  trustee,  as  directed  by  the 
order. '' 

See  also  Clay  vs.  Waters,  178  Federal.  385,  and  in  re  Marks,  176 
Federal,  1018,  where  it  was  held  that  a  bankrupt  should  not  be 
committed  for  contempt  for  a  failure  to  comply  with  an  order 
requiring  him  to  turn  over  money  to  his  trustee,  alleged  to  have 
been  withheld,  where  the  Court  is  convinced  that  the  bankrupt 
is  without  physical  ability  to  comply;  citing  also  171  Federal. 
281. 


CHAPTER  XIX. 
FOOD  AND  DRUGS. 

§  384.  Act  of  June  Thirtieth,  1906,  Generally. 

385.  Criminal  Sections. 

386.  Decisions  Under  Same. 

387.  Importation  of  Opium:  35  Stat.  L.,  614. 

§  384.  The  Act  of  June  30,  1906,  34  Stat.  L.,  768,  is  what  is 
known  as  the  Pure  Food  Act.  This  statute  contains  thirteen 
sections,  the  first  two  of  which  create  criminal  offenses.  The 
third  provides  for  rules  and  regulations  by  the  Secretary  of 
the  Treasury,  the  Secretary  of  Agriculture,  and  the  Secretary 
of  Commerce  and  Labor.  The  fourth  provides  for  certain  chem- 
ical examinations,  hearings,  etc.  The  fifth  provides  for  legal 
proceedings  by  the  District  Attorney.  The  sixth  defines  drugs 
and  food.  The  seventh  defines  adulterations,  etc.  The  eighth 
defines  misbranding,  etc.  The  ninth  relates  to  a  guaranty  by  the 
manufacturer.  The  tenth  fixes  a  method  for  seizure  of  original 
packages.  The  eleventh  provides  for  an  examination  of  imported 
foods  and  drugs.  And  the  twelfth  includes  the  insular  posses- 
sions, and  defines  "person." 

§  385.  Criminal  Sections. — The  first  two  sections  are,  therefore, 
of  interest  to  us  here.  The  first  section  provides  that  it  shall  be 
unlawful  for  any  person  to  manufacture,  within  any  Territory, 
or  the  District  of  Columbia,  any  article  of  food,  or  drugs,  which 
is  adulterated  or  misbranded,  within  the  meaning  of  the  Act, 
and  fixes  a  penalty  of  a  fine  not  to  exceed  five  hundred  dollars, 
or  one  year's  imprisonment,  or  both  such  fine  and  imprisonment. 
The  second  section  is  more  comprehensive,  because  it  applies  to 
all  interstate  commerce,  and  reads  as  follows : 

"Sec.  2.  That  the  introduction  into  any  State  or  Territory 
or  the  District  of  Columbia  from  any  other  State  or  Territory, 
or  the  District  of  Columbia,  or  from  any  foreign  country,  or 
shipment  to  any  foreign  coimtry  of  any  article  of  food  or  drugs 
which  is  adulterated  or  misbranded,  within  the  meaning  of  this 

387 


388  FOOD  AND  DRUGS 

Act,  is  hereby  prohibited ;  and  any  person  who  shall  ship  or  de- 
liver for  shipment  from  any  State  or  Territory  or  the  District  of 
Columbia  to  any  other  State  or  Territory'  or  the  District  of  Co- 
lumbia, or  to  a  foreign  eoimtiy ;  or  who  shall  receive  in  any 
State  or  Territory  or  the  District  of  Columbia  from  any  other 
State  or  Territory  or  the  District  of  Columbia,  or  foreign  coun- 
try, and  having  so  received,  shall  deliver,  in  original  unbroken 
packages,  for  pay  or  otherwise,  or  offer  to  deliver  to  any  other 
person,  any  such  article  so  adultered  or  misbranded  within  the 
meaning  of  this  Act,  or  any  person  w^ho  shall  sell  or  offer  for  sale 
in  the  District  of  Columbia  or  the  Territories  of  the  United 
States  any  such  adulterated  or  misbranded  foods  or  drugs,  or 
export  or  oft'er  to  export  the  same  to  any  foreign  country,  shall 
be  guilty  of  a  misdemeanor,  and  for  such  offense  be  fined  not  ex- 
ceeding two  hundred  dollars  for  the  first  offense,  and  upon 
conviction  for  each  subsequent  offense  not  exceeding  three 
hundred  dollars  or  be  imprisoned  not  exceeding  one  year, 
or  both,  in  the  discretion  of  the  court :  Provided,  That  no 
article  shall  be  deemed  misbranded  or  adulterated  within 
the  provisions  of  this  Act  when  intended  for  export  to 
any  foreign  country  and  prepared  or  packed  according  to 
the  specifications  or  directions  of  the  foreign  purchaser  w^hen 
no  substance  is  used  in  the  preparation  or  packing  thereof  in 
conflict  with  the  laws  of  the  foreign  country  to  which  said  article 
is  intended  to  be  shipped ;  but  if  said  article  shall  be  in  fact  sold 
or  offered  for  sale  for  domestic  use  or  consumption,  then  this 
proviso  shall  not  exempt  said  article  from  the  operation  of  any 
of  the  other  provisions  of  this  Act. ' ' 

§  386.  Decisions. — In  i)i  re  Wilson,  168  Federal,  566,  District 
Judge  Brown  held  that  syrup,  ten  per  cent,  of  which  is  made 
from  maple  sugar  and  ninety  per  cent,  from  white  sugar,  put  up 
in  bottles  having  thereon  labels  containing  the  name  "Gold 
Leaf  Syrup,"  with  a  trade-mark  consisting  of  a  gold  leaf  in  the 
form  of  a  maple  leaf,  and  stalks  of  sugar  cane,  and  the  words 
"composed  of  maple  and  white  sugar"  in  plain  and  distinct 
letters,  with  the  name  of  the  maker,  cannot  be  said  to  be  mis- 
branded, so  that  its  shipment  in  interstate  commerce  constitutes 
a  misdemeanor  under  this  Act. 

There  seems  to  have  been  some  trend  toward  including  -within 
the  spirit  of  the  statute  such  articles  of  food  and  drugs  as  may 
claim  more,  in  an  advertiseing  way,  than  can  actually  be  done; 
but  the  purpose  of  the  statute  was  to  rid  the  streams  of  com- 


FOOD  AND  DRUGS  389 

merce  of  deleterious  and  poisonous  food  and  drugs.  That  is  the 
spirit  of  the  statute,  the  evil  that  prompted  its  passage ;  and  a 
construction  of  the  statute  that  would  run  from  the  market  food 
and  drugs  that  may  be  advertised  in  a  high-sounding  way,  but 
which  are  not  in  any  sense  injurious  to  the  health  of  the  people, 
would  be  unjustified.  There  is  a  distinction  between  the  en- 
forcement of  law  and  the  abuse  of  law. 

Under  the  authority  of  the  United  States  vs.  Maufield,  177 
Federal,  765,  the  officers  of  a  corporation  which  manufactured 
a  food  product,  shipped  by  its  manager  in  interstate  commerce, 
and  which  was  adulterated  or  misbranded,  are  subject  to  pros- 
ecution under  the  Act,  where  thej^  employed  the  manager  and 
authorized  him  to  operate  the  plant  and  sell  the  product  with- 
out restriction,  and  the  previous  course  of  business  had  been  to 
ship  on  orders  to  other  states. 

That  case  also  determined  that  the  provision  of  the  Act,  Sec- 
tion 9,  that  no  dealer  shall  be  prosecuted  thereunder  for  shipping 
in  interstate  commerce  any  adulterated  or  misbranded  article 
of  food  or  drugs,  when  he  can  establish  a  guaranty  signed  by  the 
manufacturer,  that  such  article  is  not  adulterated  or  misbranded, 
is  not  available  to  a  dealer  only  when  such  guaranty  relates  to 
the  identical  article  shipped  by  him,  and  affords  no  defense  to 
him  where  it  relates  only  to  a  constituent  used  by  him  in  manu- 
facturing the  articles  shipped. 

In  United  States  vs.  779  Cases  of  IMolasses,  the  Circuit  Court 
of  Appeals  for  the  Eighth  Circuit,  in  174  Federal,  325,  held  that 
an  article  of  food  put  up  and  sold  in  cases  bearing  labels  de- 
scribing the  contents  as  a  particular  brand  of  molasses,  but 
plainly  stating,  in  three  separate  places,  that  the  product  in  a 
compound  of  molasses  and  corn  syrup,  and  also  containing  all 
the  other  information  required  by  the  Act  and  the  regulations 
thereimder,  and  which  article  is  in  fact  a  compound  of  molasses 
and  commercial  glucose,  is  not  adulterated  or  misbranded.  within 
the  meaning  of  the  Act,  it  being  shown  that  it  contains  nothing 
deleterious  to  health. 

To  the  same  effect  is  United  States  vs.  Boeckmann,  176  Fed- 
eral, 382,  where  it  was  held  that  a  food  product,  labeled  "Com- 
pound; pure  comb  and  strained  honey  and  corn  syrup,"  is  not 


390  FOOD  AND  DRUGS 

misbranded,  within  the  meaning  of  this  Act,  merely  because  the 
percentage  of  corn  syrup  in  the  compoimd  largely  exceeds  that 
of  honey.  So,  also,  in  the  case  of  United  States  vs.  68  Cases  of 
Syrup,  172  Federal,  781,  it  was  held  that  all  of  the  label  will  be 
construed  together,  and  that  construing  all  the  words  of  the  bot- 
tle labels  together,  the  same  meaning  was  intended  as  in  the 
labels  together,  the  same  meaning  was  intended  as  in  the  labels 
on  the  cases,  namely,  that  the  bottles  and  the  boxes  contained 
blended  maple  syrup.  That  case  continues  to  hold  that  the  Act 
provides  that  an  article  which  does  not  contain  any  added  poi- 
sonous or  deleterious  ingredients,  shall  not  be  deemed  to  be  adul- 
terated or  misbranded.  if  labeled  so  as  to  plainly  indicate  that  it 
is  a  compound  imitation  or  blend,  and  the  word  "blend"  is 
plainly  stated  on  the  package,  which  term  shall  be  construed  to 
mean  a  mixture  of  like  substances,  not  excluding  harmless  color- 
ing or  flavoring  ingredients,  used  for  coloring  purposes  only. 

The  term  "offal,"  under  the  authority  of  United  States  vs. 
650  Cases  of  Tomato  Catsup,  166  Federal,  773,  does  not  have  an 
exact  legal  signification  to  make  it  equivalent  to  "filthy,  decom- 
posed, or  putrid  vegetable  substance,"  as  used  in  the  Act,  and, 
therefore,  that  a  libel  containing  that  term  was  insufficient,  it 
being  essential  that  the  label  shall  set  forth  the  branding  and 
facts  inconsistent  with  the  Act.  The  Court  held,  in  United 
States  vs.  50  Barrels  of  Whiskey,  that  it  was  no  defense  to  pro- 
ceedings under  this  Act  that  the  brand  was  placed  upon  the 
packages  containing  such  liquor  by  the  United  States  guager, 
upon  information  received  from  the  distiller,  in  accordance  with 
the  usual  practice,  or  that  the  same  kind  of  liquor  had,  for  a 
number  of  years,  been  so  branded  and  sold  under  such  brand,  to 
the  knowledge  of  the  agents  and  officers  of  the  United  States. 

This,  of  course,  is  a  statement  of  the  well  established  rule  that 
sovereignty  cannot  be  bound  by  the  omission  or  commission  of 
its  agents. 

The  same  case  held  that  a  preliminary  examination  by  the  De- 
partment of  Agriculture,  as  provided  for  in  Section  4,  is  not  at 
all  a  necessary  condition  precedent  to  the  filing  of  a  libel  for 
the  condemnation  of  the  product. 

Judge  Cochran,  in  Savage  vs.  Scovell,  171  Federal,  566,  in 


FOOD   AND   DRUGS  39] 

passing  upon  the  objection  to  the  Kentucky  Pure  Food  LaAV,  that 
the  Federal  Pure  Food  Law  had  done  away  with  the  Kentucky 
Statute,  said : 

"It  is  questionable  whether  Congress  can  affect  a  State  in- 
spection law.  simply  by  legislation  covering  the  same  subject — 
whether,  in  order  to  do  so,  it  must  not  enact  legislation  under 
Clause  2,  Section  10,  Article  I.,  of  the  Federal  Constitution,  ex- 
pressly revising  and  controlling  same;  but,  this  apart,  the  two 
laws  do  not  cover  the  same  territory.  The  Federal  law  merely 
covers  the  subject  of  adulteration  and  misbranding.  The  State 
law  has  nothing  to  do  with  either.  It  has  to  do  with  the  subject 
of  disclosing  the  ingredients  of  the  articles  covered  by  it.  Its 
policy  is  to  compel  a  statement  of  ingredients,  so  that  purchasers 
thereof,  in  Kentucky,  may  know  exactly  what  they  are  buying. 
There  may  be  no  adulteration  or  misbranding — ^no  violation  of 
the  Federal  law,  and  yet  there  may  be  a  violation  of  the  State 
law  in  not  disclosing  the  ingredients." 

§  387.  Importation  of  Opium.— The  Act  of  February  9,  1909, 
Chapter  100,  35  Stat.  L.,  614,  reads  as  follows : 

"Sec.  1.  That  after  the  first  day  of  April,  nineteen  hundred 
and  nine,  it  shall  be  unlawful  to  import  into  the  United  States 
opium  in  any  form  or  any  preparation  or  derivative  thereof; 
Provided,  That  opium  and  preparations  and  derivatives  thereof, 
other  than  smoking  opium  or  opium  prepared  for  smoking,  may 
be  imported  for  medicinal  purposes  only,  under  regulations 
which  the  Secretary  of  the  Treasury  is  hereby  authorized  to  pre- 
scribe, and  when  so  imported  shall  be  subject  to  the  duties  which 
are  now  or  may  hereafter  be  imposed  by  law. 

"Sec.  2.  That  if  any  person  shall  fraudulently  or  knowingly 
import  or  bring  into  the  United  States  or  assist  in  so  doing,  any 
opium  or  any  preparation  or  derivative  thereof  contrary  to  law, 
or  shall  receive,  conceal,  buy,  sell,  or  in  any  manner  facilitate 
the  transportation,  concealment,  or  sale  of  such  opium  or  prepa- 
ration or  derivative  thereof  after  importation,  knowing  the 
same  to  have  been  imported  contrary  to  law,  such  opium  or  prep- 
aration or  derivative  thereof  shall  be  forfeited,  and  shall  be  de- 
stroyed, and  the  offender  shall  be  fined  in  any  sum  not  exceed- 
ing five  thousand  dollars  nor  less  than  fifty  dollars,  or  by  im- 
prisonment for  any  time  not  exceeding  two  years,  or  both.  When- 
ever, on  trial  for  a  violation  of  this  section,  the  defendant  is 
shown  to  have,  or  to  have  had,  possession  of  such  opium  or  prep- 
aration or  derivative  thereof,  such  possession  shall  be  deemed 
sufficient  evidence  to  authorize  conviction  unless  the  defendant 
shall  explain  the  possession  to  the  satisfaction  of  the  jury." 


CHAPTER  XX. 

PANDERING  AND  PROHIBITING  IMMORAL  USE   OF 
WOMEN  AND  GIRLS. 

§  388.     The  Act  of  February  Twentieth,  1907,  Prohibiting  Importation  for 
Prostitution. 

389.  Decisions  Thereunder. 

390.  Importing  Contract  Labor:  Section  4  of  the  Act. 

391.  Pandering:   Act  of  June  Twenty-fifth,   1910. 

392.  White  Slave  Traffic:   Act  of  June  Twenty-fifth,  1910. 

§  388.  The  Act  of  February  20,  1907,  34  Stat.  L.,  898,  con- 
tains forty-four  sections,  relating  to  immigration.  It  prohibits 
the  importing  of  women  for  prostitution,  the  importing  of  con- 
tract labor,  the  advertising  for  labor  abroad,  the  soliciting  by 
vessel  owners,  and  the  illegal  landing  of  aliens.  Sections  3  and 
4  of  the  Act  are  the  ones  most  frequently  made  use  of  to  cleanse, 
as  far  as  possible,  the  stream  of  immigration.  Section  3  reads  as 
follows : 

"Sec.  3.  That  the  importation  into  the  United  States  of  any 
alien  woman  or  girl  for  the  purpose  of  prostitution,  or  for  any 
other  immoral  purpose,  is  hereby  forbidden  ;  and  whoever  shall, 
directly  or  indirectly,  import,  or  attempt  to  import,  into  the 
United  States,  any  alien  woman  or  girl  for  the  purpose  of  pros- 
titution, or  for  any  other  immoral  purpose,  or  whoever  shall 
hold  or  attempt  to  hold  any  such  woman  or  girl  for  any  such 
purpose  in  pursuance  of  such  illegal  importation,  or  whoever 
shall  keep,  maintain,  control,  support,  or  harbor  in  any  house 
or  other  place,  for  the  purpose  of  prostitution,  or  for  any  other 
immoral  purpose,  any  alien  woman  or  girl,  within  three  years 
after  she  shall  have  entered  the  United  States,  shall,  in  every 
such  case,  be  deemed  guilty  of  a  felony,  and  on  conviction  there- 
of be  imprisoned  not  more  than  five  years  and  pay  a  fine  of  not 
more  than  five  thousand  dollars;  and  any  alien  woman  or  girl 
who  shall  be  found  an  inmate  of  a  house  of  prostitution  or  prac- 
ticing prostitution,  at  any  time  within  three  years  after  she  shall 
have  entered  the  United  States,  shall  be  deemed  to  be  unlawfully 

392 


IMMORAL  USE   OF  FEMALES  393 

within  the  United  States,  and  shall  be  deported  as  provided  by- 
sections  twenty  and  twenty-one  of  this  Act." 

Judge  Hough,  in  United  States  vs.  Bitty,  155  Federal,  938, 
held  that  the  words  "any  other  immoral  purpose,"  as  used  in 
the  above  section  must  be  construed  with  reference  to  the  pre- 
ceding word  "prostitution,"  and  to  relate  only  to  a  like  im- 
moral purpose,  and,  so  construed,  cannot  be  held  to  include  con- 
cubinage ;  and  he,  therefore,  sustained  a  demurrer  to  the  indict- 
ment. The  Government  had  gone,  by  writ  of  error,  direct  to  the 
Supreme  Court  of  the  United  States,  by  virtue  of  the  Act  of 
March  second,  1907,  34  Stat.  L.,  1246,  authorizing  writs  of  error 
by  the  United  States,  and  the  Supreme  Court  held,  in  United 
States  vs.  Bitty,  208  U.  S.,  393,  52  Law  Ed.,  544,  that  the  im- 
portation of  an  alien  woman  into  the  United  States,  in  order  that 
she  may  live  with  the  person  importing  her,  as  his  concubine,  is 
for  an  immoral  purpose,  within  the  meaning  of  the  above  sec- 
tion, making  it  a  crime  against  the  United  States  to  import  alien 
women  for  the  purpose  of  prostitution,  or  for  any  other  immoral 
purpose. 

In  Keller  vs.  United  States,  213  U.  S.,  138,  the  Supreme  Court 
held  that  that  portion  of  the  above  section  which  makes  it  a  felony 
to  harbor  alien  prostitutes  was  unconstitutional,  as  to  one  har- 
boring such  a  prostitute  without  knowledge  of  her  alienage,  or 
in  connection  with  her  coming  into  the  United  States,  as  a  reg- 
ulation of  a  matter  within  the  police  power  reserved  to  the  State, 
and  not  without  any  power  delegated  to  Congress  by  the  Con- 
stitution. The  portion,  therefore,  of  the  section  held  to  be  un- 
constitutional on  this  state  of  facts,  begins  at  the  words  "who- 
ever shall  keep,"  and  ends  with  the  words  "not  more  than  five 
thousand  dollars." 

In  line  with  this  decision  was  the  case  of  ex  parte  Lair,  177 
Federal,  789,  which  held  that  in  so  far  as  the  section  provides 
for  the  criminal  punishment  of  the  mere  keeping,  maintaining, 
supporting,  or  harboring  an  alien  woman  within  three  years 
after  entrj^  for  the  purposes  of  prostitution,  is  unconstitutional, 
such  offense  being  within  the  police  power  of  the  State,  and  not 
subject  to  Congressional  regulation.  That  case  also  held  that  the 
Act  of  March  third,  1903,  32  Stat.  L.,  1214,  in  so  far  as  it  places 


394  IMMORAL  I^SE   OF  FEMALES 

no  limitation  on  the  length  of  the  holding  of  a  female  alien  for 
prostitution,  for  which  the  holder  might  be  prosecuted,  was  re- 
pealed by  the  Act  under  discussion.  That  case  also  held  that  the 
venue  for  the  importing  of  a  female  for  immoral  purposes  was 
within  the  district  of  the  seaport  where  the  alien  first  landed  and 
entered  the  United  States.  In  the  case  of  United  States  vs. 
Sibray,  178  Federal.  144,  the  Court  held,  upon  a  writ  of  habeas 
corpus,  that  a  warrant  by  an  immigration  inspector  under  the 
Act,  which  authorizes  the  inspectors  to  proceed  without  going 
before  any  other  United  States  Courts  or  United  States  Com- 
missioner, while  not  required  to  have  the  formality  and  partic- 
ularity of  an  indictment,  it  must,  in  charging  that  the  relator 
was  an  alien  who  was  a  member  of  the  excluded  class,  in  that  he 
imported  a  woman  for  immoral  purposes,  and  that  he  had  been 
convicted  of,  or  had  admitted,  having  committed  a  felony  or 
other  crime  or  misdemeanor  involving  moral  turpitude,  prior  to 
his  entry  into  the  United  States,  was  fatally  defective  for  failure 
to  specify  the  specific  act  or  acts  which  it  was  claimed  brought 
the  relator  within  the  excluded  classes.  In  other  words,  the  de- 
cision throughout  demands  that  such  warrants  must  state  facts, 
and  not  mere  conclusions.  The  Court  also  held  that  proof  that 
an  alien,  prior  to  his  emigration,  committed  a  single  act  of  adul- 
tery or  fornication  in  the  coimtry  from  which  he  came,  was  in- 
sufficient to  justify  his  deportation  as  an  alien  having  been  con- 
victed of,  or  having  admitted,  committing  a  felony  or  other 
crime  or  misdemeanor  involving  moral  turpitude;  also  that  an 
alien  living  in  adultery  within  the  United  States  is  not  ground 
for  deportation;  such  conduct  being  solely  within  the  police 
power  of  the  statute.  See  also  United  States  vs.  Sibray,  178 
Federal,  150,  where  it  was  held  that  a  warrant  for  a  woman  stat- 
ing generally  that  she  entered  the  United  States  for  an  immoral 
purpose,  was  not  sufficiently  specific. 

§  390.  Importing  Contract  Labor. — Section  4  of  the  Act  reads 
as  follows : 

"That  it  shall  be  a  misdemeanor  for  any  person,  company, 
partnership,  or  corporation,  in  any  manner  whatsoever,  to  pre- 


IMMOEAL  USE   OF  FEMALES  395 

pay  the  transportation  or  in  any  way  to  assist  or  encourage  the 
importation  or  migration  of  any  contract  laborer  or  contract 
laborers  into  the  United  States,  unless  such  contract  laborer  or 
contract  laborers  are  exempted  under  the  terms  of  the  last  two 
provisions  contained  in  section  two  of  this  Act."  (34  Stat.  L., 
900.) 

See  United  States  vs.  Tsokas,  163  Federal,  129. 
§  391.  Pandering. — The  Act  of  June  twenty-fifth,  1910,  to  de- 
fine and  pimish  pandering,  reads  as  follows: 

"That  any  person  who,  by  threats  by  himself,  or  through 
another,  induces,  or  by  any  device  or  scheme  inveigles,  any  fe- 
male into  a  house  of  prostitution,  or  of  assignation,  in  the  Dis- 
trict of  Columbia,  against  her  will,  or  by  any  threat  or  duress 
detains  her  against  her  will,  for  the  purpose  of  prostitu- 
tion or  sexual  intercourse,  or  takes  or  detains  a  female  against 
her  will  with  intent  to  compel  her  by  force,  threats,  menace,  or 
duress  to  marry  him.  or  to  marry  any  other  person,  or  if  any 
parent,  guardian,  or  other  person  having  legal  custody  of  the 
person  of  a  female  consents  to  her  taking  or  detention  by  any 
person  for  the  purpose  of  prostitution  or  sexual  intercourse,  is 
guilty  of  pandering,  and  shall  be  punished  by  imprisonment  for 
a  term  of  not  less  than  one  nor  more  than  five  years  and  fined 
not  more  than  one  thousand  dollars. 

"Sec.  2.  That  any  person  who,  against  her  will,  shall  place 
any  female  in  the  charge  or  custody  of  any  other  person  or  per- 
sons or  in  a  house  of  prostitution  with  the  intent  that  she  shall 
live  a  life  of  prostitution,  or  any  person  who  shall  compel  any 
female,  against  her  will,  to  reside  with  him  or  with  any  other 
person  for  the  purpose  of  prostitution,  or  compel  her  against  her 
will  to  live  a  life  of  prostitution,  is  guilty  of  pandering  and  shall 
be  punished  by  a  fine  of  not  less  than  one  thousand  dollars  and 
imprisonment  for  not  less  than  one  nor  more  than  five  years. 

"Sec.  3.  That  any  person  who  shall  receive  any  money  or 
other  valuable  thing  for  or  on  account  of  procuring  for  or  plac- 
ing in  a  house  of  prostitution  or  elsewhere  any  female  for  the 
purpose  of  causing  her  illegally  to  cohabit  with  any  male  person 
or  persons  shall  be  guilty  of  a  felony,  and  upon  conviction 
thereof  shall  be  imprisoned  for  not  less  than  one  nor  more  than 
five  years. 

"Sec.  4.  That  any  person  who  by  force,  fraud,  intimidation,, 
or  threats  places  or  leaves,  or  procures  any  other  person  or  per- 
sons to  place  or  leave,  his  wife  in  a  house  of  prostitution,  or  to 
lead  a  life  of  prostitution,  shall  be  guilty  of  a  felony,  and  upon 


396  IMMORAL  USE  OF  FEMALES 

conviction  thereof  shall  be  imprisoned  not  less  than  one  nor  more 
than  ten  years. 

"Sec.  5.  That  any  person  or  persons  who  attempt  to  detain 
any  girl  or  woman  in  a  disorderly  house  or  house  of  prostitution 
because  of  any  debt  or  debts  she  has  contracted,  or  is  said  to 
have  contracted,  while  living  in  said  house  of  prostitution  or 
disorderly  house  shall  be  guilty  of  a  felony,  and  on  conviction 
thereof  be  imprisoned  for  a  term  not  less  than  one  nor  more  than 
five  years." 

Pandering  is  defined  by  the  Century  Dictionary  to  mean  to 
cater  for  the  lusts  of  others;  to  administer  to  others'  passions 
or  prejudices  for  selfish  ends ;  to  pimp  for ;  one  who  administers 
to  the  gratification  of  any  of  the  baser  passions  of  others.  It  is 
sometimes  written  pandar,  formerly  pandor.  and  was  doubtless 
taken  from  the  name  of  a  man,  Pandare.  who  procured  for 
Troilus  the  love  and  good  grace  of  Cressida. 

The  Act  of  Jime  twenty-fifth,  ]910,  entitled  an  Act  to  further 
regulate  interstate  and  foreign  commerce  by  prohibiting  the 
transportation  therein  for  immoral  purposes  of  women  and 
girls,  and  for  other  purposes,  was  directed  at  what  is  called 
the  "White  Slave"  evil,  and,  as  far  as  it  relates  to  the  criminal 
features,  is  as  follows: 

"That  the  term  'interstate  commerce,'  as  used  in  this  Act, 
shall  include  transportation  from  any  State  or  Territory  or  the 
District  of  Columbia  to  any  other  State  or  Territory  or  the  Dis- 
trict of  Columbia,  and  the  term  'foreign  commerce,'  as  used 
in  this  Act,  shall  include  transportation  from  any  State  or  Terri- 
tory or  the  District  of  Columbia  to  any  foreign  country  and  from 
any  foreign  country  to  any  State  or  Territory  or  the  Ditsrict  of 
Columbia. 

"Sec.  2.  That  any  person  who  shall  knowingly  transport  or 
cause  to  be  transported,  or  aid  or  assist  in  obtaining  transporta- 
tion for,  or  in  transporting,  in  interstate  or  foreign  commerce, 
or  in  any  Territory  or  in  the  District  of  Columbia,  any  woman 
or  girl  for  the  purpose  of  prostitution  or  debauchery,  or  for  any 
other  immoral  purpose,  or  with  the  intent  and  purpose  to  induce, 
entice,  or  compel  such  woman  or  girl  to  become  a  prostitute  or 
to  give  herself  up  to  debauchery,  or  to  engage  in  any  other  im- 
moral practice ;  or  who  shall  knowingly  procure  or  obtain,  or 
cause  to  be  procured  or  obtained,  or  aid  or  assist  in  procuring 
or  obtaining,  any  ticket  or  tickets,  or  any  form  of  transportation 
or  evidence  of  the  right  thereto,  to  be  used  by  any  woman  or  girl 


IMMORAL   USE   OF  FEMALES  397 

in  interstate  or  foreign  commerce,  or  in  any  Territory  or  the 
District  of  Columbia,  in  going  to  any  place  for  the  purpose  of 
prostitution  or  debauchery,  or  for  any  other  immoral  purpose, 
or  with  the  intent  or  purpose  on  the  part  of  such  person  to  in- 
duce, entice,  or  compel  her  to  give  herself  up  to  the  practice  of 
prostitution,  or  to  give  herself  up  to  debauchery,  or  any  other 
immoral  practice,  whereby  any  such  woman  or  girl  shall  be  trans- 
ported in  interstate  or  foreign  commerce,  or  in  any  Territory  or 
the  District  of  Columbia,  shall  be  deemed  guilty  of  a  felony, 
and  upon  conviction  thereof  shall  be  punished  by  a  fine  not  ex- 
ceeding five  thousand  dollars,  or  by  imprisonment  of  not  more 
than  five  years,  or  by  both  such  fine  and  imprisonment  in  the 
discretion  of  the  court. 

"Sec.  3.  That  any  person  who  shall  knowingly  persuade,  in- 
duce, entice,  or  coerce,  or  cause  to  be  persuaded,  induced,  en- 
ticed, or  coerced,  or  aid  or  assist  in  persuading,  inducing,  entic- 
ing, or  coercing  any  woman  or  girl  to  go  from  one  place  to  an- 
other in  interstate  or  foreign  commerce,  or  in  any  Territory  or 
the  District  of  Columbia,  for  the  purpose  of  prostitution  or  de- 
bauchery, or  for  any  other  immoral  purpose,  or  with  the  intent 
and  purpose  on  the  part  of  such  person  that  such  woman  or 
girl  shall  engage  in  the  practice  of  prostitution  or  debauchery, 
or  any  other  immoral  practice,  whether  with  or  without  her  con- 
sent, and  who  shall  thereby  knowingly  cause  or  aid  or  assist  in 
causing  such  woman  or  girl  to  go  and  to  be  carried  or  transported 
as  a  passenger  upon  the  line  or  route  of  any  common  carrier  or 
carriers  in  interstate  or  foreign  commerce,  or  any  Territory  or 
the  District  of  Columbia,  shall  be  deemed  guilty  of  a  felony,  and 
on  conviction  thereof  shall  be  punished  by  a  fine  of  not  more 
than  five  thousand  dollars,  or  by  imprisonment  for  a  term  not 
exceeding  five  years,  or  by  both  such  fine  and  imprisonment,  in 
the  discretion  of  the  court. 

*'Sec.  4.  That  any  person  who  shall  knowingly  persuade,  in- 
duce, entice,  or  coerce  any  woman  or  girl  under  the  age  of  eight- 
een years  from  any  State  or  Territory  or  the  District  of  Colum- 
bia, with  the  purpose  and  intent  to  induce  or  coerce  her,  or  that 
she  shall  be  induced  or  coerced  to  engage  in  prostitution  or  de- 
bauchery, or  any  other  immoral  practice,  and  shall  in  further- 
ance of  such  purpose  knowingly  induce  or  cause  her  to  go  and  to 
be  carried  or  transported  as  a  passenger  in  interstate  commerce 
upon  the  line  or  route  of  any  common  carrier  or  carriers,  shall 
be  deemed  guilty  of  a  felony,  and  on  conviction  thereof  shall  be 
punished  by  a  fine  of  not  more  than  ten  thousand  dollars,  or  by 
imprisonment  for  a  term  not  exceeding  ten  years,  or  by  both 
such  fine  and  imprisonment,  in  the  discretion  of  the  court. 


398  IMMORAL  USE  OF  FEMALES 

* '  Sec.  5.  That  any  violation  of  any  of  the  above  sections  two, 
three,  and  four  shall  be  prosecuted  in  any  court  having  jurisdic- 
tion of  crimes  within  the  district  in  which  said  violation  was  com- 
mitted, or  from,  through,  or  into  which  any  such  woman,  or  girl 
may  have  been  carried  or  transported  as  a  passenger  in  inter- 
state or  foreign  commerce,  or  in  any  Territory  or  the  District  of 
Columbia,  contrary  to  the  provisions  of  any  of  said  sections." 


CHAPTER  XXI. 
SOME   GENERAL   AND   SPECIAL   PROVISIONS. 

§  393.     Punishment  of  Death  by  Hanging:  5325—323. 

394.  No    Conviction    to    Work    Corruption    of    Blood    or    Forfeiture    of 

Estate:    5326—324. 

395.  Whipping  and  the  Pillory  Abolished:   5327—325. 

396.  Jurisdiction  of  State  Courts:   5328—326. 

397.  Illustrative  Cases  on  Jurisdiction. 

398.  Other  Decisions. 

399.  Pardoning  Power. 

400.  Qualified  Verdicts  in  Certain  Cases:  II  Sup.,  538 — 330. 

401.  Body    of    Executed    Offender    May    Be    Delivered    to    Surgeon    for 

Dissection:   5340 — 331. 

402.  Who  Are  Principals:   .5323  and  5427—332. 

403.  Punishment  of  Accessories:   5533  and  5534  and  5535 — 333. 

404.  Felonies  and  Misdemeanors:    New  Code,  335. 

405.  Omission  of  Words  ' '  Hard  Labor ' '  Not  to  Deprive  Court  of  Power 

to  Impose:  New  Code,  338. 

406.  Repealing  Provisions  of  New  Code. 

407.  Parol  of  United  States  Prisoners. 

408.  Witnesses  for  Poor  Accused:   878. 

409.  Publicity  for  Political  Contributions. 

§  393.  Punishment  of  Death  by  Hanging. — Section  323  of  the 
New  Code  is  in  the  exact  words  of  old  Statute  5325,  to  wit: 

'  *  Sec.  323.  The  manner  of  inflicting  the  punishment  of  death 
shall  be  by  hanging.'' 

§  394.  No  Conviction  to  Work  Corruption  of  Blood  or  Forfeiture 
of  Estate. — Section  324  of  the  New  Code  is  in  the  identical 
words  of  the  old  Statute  5326,  as  follows: 

"Sec.  324.  No  conviction  or  judgment  shall  work  corruption 
blood  or  any  forfeiture  of  estate." 

In  England,  felony  comprises  every  species  of  crime  which  at 
Common  Law  worked  a  forfeiture  of  goods  and  lands. 

§  395.  Whipping  and  the  Pillory  Abolished.— Section  325  of  the 
New  Code  uses  the  words  of  old  Statute  5327,  as  follows : 

399 


400  SOME    GENERAL   AND    SPECIAL    PROVISIONS 

"Sec.  325.  The  punishment  of  whipping  and  of  standing  in 
the  pillory  shall  not  be  inflicted." 

§  396.  Jurisdiction  of  State  Courts. — Section  326  of  the  New 
Code  uses  the  words  of  the  old  Statute  5328,  as  follows : 

"Sec.  326.  Nothing  in  this  Title  shall  be  held  to  take  away 
or  impair  the  jurisdiction  of  the  courts  of  the  several  States  un- 
der the  laws  thereof. ' ' 

The  word  "Title"  used  in  the  above  section  must  necessarily 
mean  all  of  the  sections  in  the  New  Code ;  that  is,  from  Section  1 
to  Section  325  inclusive.  It  could  not  be  limited  to  the  few  sec- 
tions in  Chapter  XIV.  of  the  New  Code,  which  treats  alone  of 
general  and  special  provisions. 

Decisions. — The  efforts  of  the  Courts  to  maintain  the  sovereign- 
ty of  the  Federal  and  State  Governments  without  impingement 
from  either  side  have  been  both  commendable  and  successful. 
It  is  true  that  at  times  the  line  has  been  difficult  to  trace,  and 
conflict  seemed  imminent,  but  careful  reasoning  and  a  thorough 
determination  to  preserve  the  autonomy  and  virgin  jurisdiction 
of  each  Government  have  usually  triumphed.  Even  the  Supreme 
Court  of  the  United  States  has  not  hesitated  to  distinguish  its 
own  decisions  so  as  to  keep  the  line  as  distinct  as  possible.  In 
the  case  of  New  York  vs.  Eno,  155  U.  S.,  page  89,  hereinafter 
noticed,  it  became  necessary  for  the  preservation  of  the  State 
lines  to  distinguish  in  re  Loney,  134  U.  S.,  372,  and  the  Court 
did  so  by  announcing  that  the  Loney  decision  was  one  of  ur- 
gency, which  involved  the  authority  and  operation  of  the  general 
Government. 

It  may  be  announced  as  the  general  rule,  gathered  from  the 
decisions,  that  where  there  is  an  apparent  conflict  of  authority, 
and  the  State  co^^rt  secures  jurisdiction  of  the  person,  that  per- 
son must  exhaust  all  State  remedies  before  appealing  to  the  Fed- 
eral Courts  for  relief.  If,  however,  as  in  the  Loney  case,  imme- 
diate action  is  urgent,  not  to  the  interests  of  the  person,  but  to 
the  interests  of  the  general  Government,  then  and  in  that  event 
the  Courts  of  the  general  Government  will  interfere  before  all 
State  remedies  have  been  exhausted.  So,  too,  if  Congress  has 
taken  exclusive  jurisdiction  of  an  offense  interference  by  similar 
prosecutions  in  the  State  Courts  are  not  permitted. 


SOME    GENERAL   AND    SPECIAL    PROVISIONS  401 

§  397.  Illustrations.  In  the  case  of  Cross  vs.  North  Carolina, 
132  U.  S.,  140,  33  Law  Ed.,  287,  the  Supreme  Court  held  that 
where  an  officer  of  a  national  bank  forged  a  promissory  note  and 
entered  it  upon  the  books  of  the  bank  for  the  purpose  of  sus- 
taining false  entries  in  the  books  and  in  order  to  deceive  the 
United  States  Bank  Examiner,  he  could  be  tried  and  convicted 
of  forgery  of  the  note  in  the  State  Court  although  the  offense 
of  making  such  false  entries  is  one  against  the  United  States,  of 
which  its  courts  have  exclusive  cognizance.  In  other  words,  the 
crime  of  forgeiy  against  the  State  could  not  be  excused  or  ob- 
literated by  committing  another  and  distinct  crime  against  the 
United  States;  and  the  act,  or  series  of  acts,  constituting  an  of- 
fense equally  against  the  United  States  and  the  State,  subjects 
the  guilty  party  to  punishment  under  the  laws  of  each  Govern- 
ment. In  Thomas  vs.  Loney,  134  U.  S.,  377,  33  Law  Ed.,  949, 
the  Supreme  Court  of  the  United  States  discharged,  upon  habeas 
corpus  applicant  Loney  from  imprisonment  under  a  warrant  of 
arrest  from  a  justice  of  the  peace  of  Virginia,  upon  a  complaint 
charging  him  with  the  perjury  in  giving  his  deposition  as  a  wit- 
ness before  a  notary  public  of  the  city  of  Richmond,  in  the  case 
of  a  contested  election  of  a  member  of  the  House  of  Representa- 
tives of  the  United  States,  and  held,  in  substance,  that  the  no- 
tary public  designated  by  Congress  to  take  depositions  in  case  of 
a  contested  election  of  a  member  of  the  House  of  Representatives 
of  the  United  States,  performs  this  function  under  the  authority 
of  Congress,  and  not  under  that  of  the  State,  and  testimony  taken 
in  such  a  case  stands  on  the  same  ground  as  if  taken  before  a 
judge  or  officer  of  the  United  States,  and  a  witness  giving  his 
testimony  in  such  a  case  is  accountable  for  the  truth  of  his  tes- 
timony to  the  United  States  onl.y,  and  the  power  to  punish  such 
witness  belongs  exclusively  to  the  Government  in  whose  tri- 
bunals that  proceeding  is  had. 

This  case  affirms  the  same  case  in  38  Federal,  101.  In  the 
same  report,  on  page  380,  33  Law  Ed.,  951,  in  the  case  of  Fitz- 
gerald vs.  Green,  the  Supreme  Court  reversed  the  decision  of 
the  Circuit  Court  of  the  United  States,  discharging  upon  Jiabeas 
corpus  Green  from  imprisonment  under  a  judgment  of  the  Court 
of  Virginia,  imposed  upon  him  for  unlawfully  voting  for  pres- 


402  SOME    GENERAL   AND    SPECIAL    PROVISIONS 

idential  electors,  and  held,  in  substance,  that  the  State  has  the 
power  to  punish  for  illegal  and  fraudulent  voting  for  presiden- 
tial electors,  because  Congress  has  never  undertaken  to  interfere 
with  the  manner  of  appointing  electors,  or  the  mode  of  appoint- 
ment prescribed  by  the  law  of  the  State  to  regulate  the  conduct 
of  such  election,  or  to  punish  any  fraud  in  voting  for  electors, 
but  has  left  these  matters  to  the  control  of  the  States. 

In  McPherson  vs.  Blacker,  146  U.  S.,  page  1 ;  36  Law  Ed.,  page 
869,  the  Supreme  Court  of  the  United  States  maintained  its 
right,  under  Section  709  of  the  Revised  Statutes  of  the  United 
States,  to  inquire  into  the  method,  upon  proper  petition,  pursued 
by  a  State  in  the  selection  of  its  presidential  electors ;  and  after 
so  maintaining  its  jurisdiction,  determined  that  the  Constitu- 
tion did  not  provide  that  the  appointment  of  electors  shall  be  by 
popular  vote,  nor  that  the  electors  shall  be  voted  for  upon  a  gen- 
eral ticket,  nor  that  the  majority  of  those  who  exercise  the  elective 
franchise  can  alone  choose  the  electors,  and  that  the  appointment 
and  mode  of  appointment  of  the  electors  was  exclusively  left  to 
the  States  under  the  Constitution  of  the  United  States,  and  up- 
held the  Michigan  Act,  even  though  the  same  was  questioned  as 
being  repugnant  to  the  Constitution  of  the  United  States. 

In  Pettibone  vs.  United  States.  148  U.  S.,  197,  37  Law  Ed.. 
419,  the  Supreme  Court  held  that  persons  cannot  be  convicted  of 
obstructing  the  administration  of  justice  in  a  Federal  Court  im- 
der  United  States  Revised  Statute  5399,  because  of  a  criminal  in- 
tent on  their  part  to  commit  a  crime  against  the  State,  in  the  de- 
ciding of  which  the  Court  affirmed  the  doctrine  that  United 
States  Courts  have  no  jurisdiction  over  offenses  not  made  pun- 
ishable by  the  Constitution,  laws,  or  treaties  of  the  United 
States. 

In  the  case  of  Ohio  vs.  Brooks.  173  U.  S..  page  299.  43  Law 
Ed.,  page  699.  the  Supreme  Court  discharged,  upon  habeas  cor- 
pus, Thomas,  who  was  the  Superintendent  of  the  United  States 
Soldiers'  Home,  and  who  had  been  convicted  in  the  State  Court 
for  serving  oleomargarine  in  violation  of  the  State  law.  to  dis- 
abled soldiers  under  his  charge  at  the  said  home,  and  held  that 
the  Governor  of  a  Soldiers'  Home,  which  is  under  the  sole  juris- 
diction of  Congress,  even  though  jurisdiction  has  not  been  ceded 


SOME   GENERAL   AND    SPECIAL    PROVISIONS  403 

to  the  land  upon  which  the  home  is  situated  by  the  State  Legis- 
lature, is  not  subject  to  the  State  Law  concerning  the  use  of 
oleomargarine  w'hen  he  furnishes  that  article  to  the  inmates  of 
the  home,  as  a  part  of  the  rations  furnished  for  them  under  ap- 
propriations made  by  Congress  therefor. 

In  United  States  vs.  Eno,  155  U.  S.,  page  89,  39  Law  Ed., 
page  80,  arose  upon  a  writ  of  habeas  corpus  sued  out  by  Eno, 
w^ho  alleged  that  he  was  in  the  city  prison  of  New  York  City, 
by  reason  of  certain  bench  warrants  issued  upon  indictment 
against  him  in  a  State  Court  of  New  York  for  certain  offenses 
over  which  the  State  Courts  had  no  jurisdiction ;  such  offenses 
being  the  making  of  false  entries  in  the  books  of  a  national  bank. 
He  was  discharged  by  the  Circuit  Court  of  the  United  States,  and 
the  State  of  New  York  appealed  to  the  Supreme  Court,  which 
Court  reversed  the  judgment  of  the  Circuit  Court  of  the  United 
States,  and  held,  in  substance,  that  the  Circuit  Court  of  the  Uni- 
ted States  should  not,  except  in  cases  of  urgency,  discharge  upon 
habeas  corpus  from  custody  under  warrants  issued  by  a  State 
Court,  one  charged  with  the  offense  committed  while  president 
of  a  national  bank,  of  forgery  by  making  false  entries  in  the 
books  of  the  bank,  with  intent  to  defraud,  where  he  is  not  in- 
dicted in  any  Court  of  the  United  States  for  such  offense.  The 
claim  of  the  accused  of  immunity  from  prosecution  under  the 
State  Court  should  be  first  passed  upon  by  the  highest  Court  of 
the  State ;  and  if  any  Federal  right  is  denied  him,  he  may  then 
take  the  case  to  the  Supreme  Court  of  the  United  States  for 
redress. 

In  referring  to  the  Loney  case,  134  U.  S.,  cited  supra,  the 
Court  said : 

"It  may  be  well  to  refer  to  the  case  of  Thomas  vs.  Loney,  134 
U.  S.  It  will  be  observed  that  this  Court,  in  ex  parte  Royall, 
recognized  certain  cases  as  constituting  exceptions  to  the  general 
rule— among  which  are  cases  of  urgency,  involving  the  authority 
and  operations  of  the  general  government.  Loney 's  case  was  of 
that  class.  It  appeared  from  the  record  that  he  was  duly  sum- 
moned to  give  his  deposition  in  a  contested  election  case,  pending 
in  the  House  of  Representatives  of  the  Congress  of  the  United 
States, — a  summons  he  was  obliged  to  obey,  unless  prevented  by 
sickness  or  unavoidable  accident,  under  the  penalty  of  forfeiting 


404  SOME    GENERAL   AND    SPECIAL    PROVISIONS 

a  named  sum  to  the  party  at  whose  instance  he  was  summoned, 
and  of  becoming  subject  to  fine  and  imprisonment,  that  he  ap- 
peared before  a  notary  public  in  obedience  to  such  summons,  and 
proceeded  to  give  his  deposition ;  and  that  while  in  the  office  of 
an  attorney,  for  the  purpose  of  completing  his  testimony,  he 
was  arrested  under  a  warrant  issued  by  a  justice  of  the  peace 
based  upon  the  affidavit  of  one  of  the  parties  in  the  contested 
election  case,  charging  him  with  wilful  perjury,  committed  in  his 

deposition It  is  clear  from  this  statement  that  that  case 

was  one  of  urgency,  involving,  in  a  substantial  sense,  the  au- 
thority and  operations  of  the  general  Government. ' ' 

Exclusive  Jurisdiction  of  the  United  States. — It  will  be  well,  in 
considering  this  line  of  decisions,  and  ofttimes  in  viewing  just 
where  the  jurisdiction  of  the  State  Court  ends  and  the  jurisdic- 
tion of  the  Federal  Court  begins,  and  just  where  the  Federal 
Court  will  exercise  exclusive  jurisdiction,  to  bear  in  mind  Sec- 
tion 711  of  the  Revised  Statutes  of  the  United  States,  wherein 
the  Courts  of  the  United  States  are  given  exclusive  jurisdiction 
over  such  matters  as  are  therein  named,  to  wit :  all  crimes  and 
offenses  cognizable  under  the  authority  of  the  laws  of  the  United 
States;  all  suits  for  penalties  and  forfeitures  incurred  under  the 
laws  of  the  United  States ;  all  civil  cases  of  admiralty  and  mar- 
itime jurisdiction ;  all  seizures  under  the  laws  of  the  United 
States  on  land  or  on  sea ;  all  cases  arising  under  the  patent-right 
or  copy-right  laws  of  the  United  States;  all  matters  and  pro- 
ceedings in  bankruptcy ;  all  controversies  of  a  civil  nature, 
where  a  State  is  a  party,  except  between  a  State  and  its  citi- 
zens, or  between  a  State  and  citizens  of  other  States  or  aliens; 
and  all  suits  or  proceedings  against  ambassadors  or  other  public 
ministers  or  their  servants,  or  against  consuls  or  vice-consuls. 

§  398.  Other  Decisions. — In  United  States  vs.  Lackey,  99  Fed- 
eral, 952,  which  was  a  case  arising  upon  prosecution  for  alleged 
violations  of  Section  5507  and  5508,  growing  out  of  indictments 
for  alleged  interference  with  the  rights  secured  by  the  Fifteenth 
Amendment,  the  Court  held  that  neither  the  Fifteenth  Amend- 
ment, nor  the  statutes  enacted  for  its  enforcement,  were  intended 
in  any  primary  sense,  to  protect  any  right  or  interest  of  the  Uni- 
ted States,  and  the  fact  that  the  national  Government  had  no 
direct  interest  in  an  election  does  not  affect  the  applicability  of 


SOME   GENEEAL   AND    SPECIAL   PROVISIONS  405 

such  statutes,  or  constitute  a  defense  to  an  indictment  for  their 
violation  in  connection  with  such  election.  In  other  words,  this 
decision  holds,  and  it  seems  to  be  the  law,  that  one  may  be  pros- 
ecuted in  the  Federal  Courts  for  a  violation  of  the  acts  of  Con- 
gress which  are  made  to  give  life  to  the  Fifteenth  Amendment, 
even  though  the  rights  interfered  with  under  the  Fifteenth 
Amendment  were  civil  rights  under  the  State. 

In  in  re  Welch,  57  Federal,  576,  Circuit  Judge  Lacombe  held 
that  the  question  as  to  whether  the  State  Court  has  jurisdiction 
over  a  pilot  indicted  for  manslaughter,  in  causing  the  death  of 
another  person  on  another  boat,  by  causing  the  boat  in  his 
charge  to  collide  therewith,  cannot  be  raised  by  an  application 
for  a  writ  of  habeas  corpus,  when  the  prisoner  may  raise  it  by 
appeal  or  otherwise  in  the  State  Courts,  and  may  carry  it  thence, 
should  the  decision  be  adverse,  to  the  United  States  Supreme 
Court  by  writ  of  error. 

In  m  re  Waite,  81  Federal,  359,  District  Judge  Shiras  held 
that  an  officer  or  agent  of  the  United  States  engaged  in  the  per- 
formance of  a  duty  arising  under  the  laws  and  authority  of  the 
United  States,  is  not  liable  to  a  criminal  prosecution  in  the  Courts 
of  a  State  for  acts  done  by  him  in  his  official  capacity,  and  such 
agent  or  officer  need  not  wait  to  carry  the  case  to  the  highest 
Court,  and  then,  by  writ  of  error,  to  the  United  States  Supreme 
Court,  but  may  have  his  release  at  once  upon  habeas  corpus,  if 
necessary,  since  the  operations  of  the  Federal  Government  would 
in  the  meantime  be  obstructed  by  the  confinement  of  its  officer. 
This  decision  was  affirmed  in  Campbell  vs.  Waite,  by  the  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit,  in  88  Federal,  page 
102. 

In  in  re  Miller,  42  Federal,  307,  the  Court  held  that  where 
a  United  States  Marshal  is  arrested  under  State  authority,  on  a 
charge  of  forgery,  the  fact  that  at  the  time  of  his  arrest  he  was 
on  his  way  to  serve  process  issued  by  a  United  States  Commis- 
sioner, did  not  oust  the  State  authorities  from  jurisdiction,  where 
it  does  not  appear  that  he  was  arrested  for  any  act  done  in  pur- 
suance of  Federal  authority,  or  with  the  intent  to  interfere  with 
the  service  of  the  process  in  his  hands. 

The  case  of  ex  parte  Geisler,  50  Federal,  411,  recites  the  clause 


406  SOME   GENERAL   AND    SPECIAL   PROVISIONS 

in  the  counterfeiting  statute  which  authorizes  prosecution  for 
that  offense  in  the  State  Courts,  and  holds,  of  course,  that  the 
State  Courts  have  power  to  punish  counterfeiting  under  the 
State  statutes. 

§  399.  Pardoning  Power. — Section  327  of  the  New  Code  is  in 
the  exact  words  of  old  Section  5330,  and  reads  as  follows : 

"Sec.  327.  Whenever,  by  the  judgment  of  any  court  or  ju- 
dicial officer  of  the  United  States,  in  any  criminal  proceeding, 
any  person  is  sentenced  to  two  kinds  of  punishment,  the  one  pe- 
cuniary and  the  other  corporal,  the  President  shall  have  full 
discretionary  power  to  pardon  or  remit,  in  whole  or  in  part, 
either  one  of  the  two  kinds,  without,  in  any  manner,  impairing 
the  legal  validity  of  the  other  kind,  or  of  any  portion  of  either 
kind,  not  pardoned  or  remitted." 

This  section  does  not  mean  that  a  pardon  releases  the  offender 
from  all  of  the  disabilities  imposed  by  the  offense,  to  the  extent  of 
undoing  any  rights  which  have  vested  in  others  directly,  as 
property  rights,  Knote  vs.  United  States,  94  U.  S.,  157,  24  Law 
Ed.,  442. 

Under  the  rules  of  the  Department  of  Justice,  those  who  seek 
pardons  should  make  their  applications  direct  to  the  President, 
who,  in  turn,  refers  the  papers  to  the  Attorney  General,  who 
thereafter  refers  them  to  the  District  Attorney  in  the  proper  Dis- 
trict, with  instructions  to  report  thereon,  and  obtain,  if  possible, 
the  views  of  the  trial  Judge.  Both  trial  Judges  and  District  At- 
torneys are  requested  by  the  Department  of  Justice  not  to  make 
recommendations  or  give  letters  for  commutation  until  requested 
so  to  do  by  the  Department  of  Justice. 

§  400.  Qualified  Verdicts  in  Certain  Cases. — Section  330  of  the 
New  Code,  re-enacts  the  Act  of  the  fifteenth  of  January,  1897, 
29  Stat.  L.,  487,  Second  Supplement,  538,  and  is  in  the  following 
words : 

"Sec.  330.  In  all  cases  where  the  accused  is  found  guilty  of 
the  crime  of  murder  in  the  first  degree;  or  rape,  the  jury  may 
qualify  their  verdict  by  adding  thereto  "without  capital  pun- 
ishment''; and  whenever  the  jury  shall  return  a  verdict  qualified 
as  aforesaid,  the  person  convicted  shall  be  sentenced  to  impris- 
onment for  life." 

§  401 .  Body  of  Executed  Offender  May  be  Delivered  to  Surgeon 


SOME   GENERAL   AND    SPECIAL   PROVISIONS  407 

for  Dissection. — Section  5340  of  the  old  statutes  becomes,  in  sub- 
stance. Section  331  of  the  New  Code,  as  follows : 

"See.  331.  The  court  before  which  any  person  is  convicted  of 
murder  in  the  first  degree,  or  rape,  may,  in  its  discretion,  add  to 
the  judgment  of  death,  that  the  body  of  the  offender  be  delivered 
to  a  surgeon  for  dissection ;  and  the  marshal  who  executes  such 
judgment  shall  deliver  the  body,  after  execution,  to  such  surgeon 
as  the  court  may  direct ;  and  such  surgeon,  or  some  person  ap- 
pointed by  him,  shall  receive  and  take  away  the  body  at  the  time 
of  execution." 

§  402.  Who  Are  Principals. — Sections  5323  and  5427  become 
332  of  the  New  Code,  in  the  following  words : 

"Sec.  332.  Whoever  directly  commits  any  act  constituting  an 
offense  defined  in  any  law  of  the  United  States,  or  aids,  abets, 
counsels,  commands,  induces,  or  procures  its  commission,  is  a 
principal." 

§  403.  Punishment  of  Accessories. — Section  333  of  the  New 
Code  comprises  the  substantial  elements  of  5533,  5534,  and  5535 
of  the  old  statutes,  and  is  in  the  following  words : 

''Sec.  333.  "Whoever,  except  as  otherwise  expressly  provided 
by  law,  being  an  accessory  after  the  fact  to  the  commission  of  any 
offense  defined  in  any  law  of  the  United  States,  shall  be  im- 
prisoned not  exceeding  one-half  the  longest  term  of  imprison- 
ment, or  fined  not  exceeding  one-half  the  largest  fine  prescribed 
for  the  punishment  of  the  principal,  or  both,  if  the  principal  is 
punishable  by  both  fine  and  imprisonment ;  or  if  the  principal 
is  punishable  by  death,  then  an  accessory  shall  be  imprisoned  not 
more  than  ten  years. 

§  404.  Felonies  and  Misdemeanors. — Section  335  of  the  New 
Code  is  one  of  the  most  important  and  most  practical  of  the  en- 
tire Act,  because  it  settles  for  all  time  the  much  mooted  question 
often  raised  upon  challenges  and  elsewhere  as  to  when  a  given 
offense  is  a  misdemeanor  or  a  felony.  The  Section  is  in  the  fol- 
lowing words : 

"§  Sec.  335.  All  offenses  which  may  be  punished  by  death,  or 
imprisonment  for  a  term  exceeding  one  year,  shall  be  deemed 
felonies.    All  other  offenses  shall  be  deemed  misdemeanors." 

§  405.  Omission  of  Words  "Hard  Labor"  Not  to  Deprive  Court  of 
Power  to  Impose. — Section  338  of  the  New  Code  reads  as  follows : 

''Sec.  338.  The  omission  of  the  words  "hard  labor"  from 
the  provisions  prescribing  the  punishment  in  the  various  sections 


408  SOME    GENERAL   AND    SPECIAL    PROVISIONS 

of  this  Act,  shall  not  be  construed  as  depriving  the  court  of  the 
power  to  impose  hard  labor  as  a  part  of  the  punishment,  in  any 
case  where  such  power  now  exists. ' ' 

§  406,  Repealing  provisions.  Chapter  XV.  of  the  New  Code, 
which  includes  Sections  341  to  345,  repeal  such  sections  of  the 
old  Code  as  are  necessary  to  make  effective  the  New  Code;  pro- 
viding that  accrued  rights  shall  not  be  affected,  and  announcing 
that  prosecutions  and  acts  of  limitations  are  not  affected. 

§  407.  Parol  of  TJnited  States  Prisoners. — The  Act  of  Congress 
dated  June  twenty-fifth,  1910,  provides  that  the  Superintendent 
of  Prisons  of  the  Department  of  Justice  and  the  warden  and 
physician  of  each  United  States  Penitentiary,  shall  constitute  a 
board  of  parole  of  such  prison,  and  provides,  in  general  terms, 
for  the  release  on  parol  of  convicts  so  recommended  by  the 
Board.     The  Act  is  in  ten  sections. 

§  408.  Witnesses  for  Poor  Accused. — Section  878  of  the  old 
statutes  provides  that  when  any  person  is  indicted  in  any  Court 
of  the  United  States  who  is  unable  to  pay  for  witnesses  in  his  be- 
half, he  shall  make  an  affidavit  setting  forth  facts  in  accordance 
with  the  terms  of  the  section,  in  which  event  the  Court  orders 
the  process  at  the  expense  of  the  United  States. 

The  Act  of  June  twenty-fifth,  1910,  authorizes  suits,  writs  of 
error,  etc.,  by  poor  persons  upon  making  of  certain  certificates 
and  oaths  therein  provided  for. 

§  409.  Publicity  of  Contributions. — An  Act  approved  Jmie 
twenty-fifth,  1910,  provides  for  the  publicity  of  the  contributions 
made  to  all  political  parties,  which  shall  in  two  or  more  States 
influence  the  result,  or  attempt  to  influence  the  result,  of  an  elec- 
tion at  which  representatives  in  Congress  are  to  be  elected.  The 
Act  is  in  ten  sections,  and  provides  in  Section  6  that  the  public 
statements  shall  give  the  name  and  address  of  each  contributor, 
the  total  sum  contributed,  the  total  sum  of  all  promises  and 
loans  and  advances,  the  total  sum  disbursed,  advanced,  or  prom- 
ised, and  provides  a  penalty  in  Section  10,  as  follows: 

"That  every  person  wilfully  violating  any  of  the  provisions  of 
this  Act  shall,  upon  conviction,  be  fined  not  more  than  one  thou- 
sand dollars  or  imprisoned  not  more  than  one  year,  or  both. ' ' 


CHAPTER  XXit 

FORM  OF  INDICTMENT. 

Form  of  Indictment  under  Section  225,  old  Section  4046,  etc., 
for  embezzlement : 

"The  United  States  of  America. 

"At  a  District  Court  of  the  United  States  of  America,  for  the 
District  of  Massachusetts,  begun  and  holden  at  Boston,  within 
and  for  said  district,  on  the  first  Tuesday  of  December  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  nine. 

"First  Count.  The  jurors  for  the  United  States  of  America, 
within  and  for  the  District  of  Massachusetts,  upon  their  oath, 
present  that  Frank  H.  Mason,  of  Boston,  in  said  district, 
during  all  of  the  year  nineteen  hundred  and  eight,  was,  and 
ever  since  then  has  been,  an  officer  of  the  United  States,  to  wit, 
clerk  of  the  District  Court  of  the  United  States  for  the  District  of 
Massachusetts,  and,  on  the  first  day  of  February,  in  the  year 
nineteen  himdred  and  nine,  had  in  his  possession  and  under  his 
control,  to  wit,  at  Boston  aforesaid,  certain  money  of  the  United 
States,  a  particular  description  whereof  is  to  said  grand  jurors 
unkno\\Ti,  to  the  amount  and  value  of  three  hundred  and  eighty- 
seven  dollars,  which  during  said  year  nineteen  hundred  and 
eight  had  come  into  his  posvsession  and  under  his  control  in  the 
execution  of  his  office  as  such  officer  and  clerk,  and  under  author- 
ity and  claim  of  authority  as  such  officer  and  clerk,  and  which  he 
should,  on  said  first  day  of  February,  in  the  year  nineteen  hun- 
dred and  nine,  have  accounted  for  and  paid  to  the  United  States 
at  Boston  aforesaid  in  the  manner  provided  by  law;  and  that 
said  Frank  H.  Mason,  on  said  first  day  of  February,  in  the  year 
nineteen  hundred  and  nine,  at  Boston  aforesaid,  the  same  money 
unlawfully  and  feloniously  did  embezzle. 

"Second  Count.  And  the  jurors  aforesaid,  on  their  oath 
aforesaid,  do  further  present,  that  said  Frank  H.  Mason  during 
all  of  the  year  nineteen  hundred  and  eight  was,  and  ever  since 
has  been,  an  officer  of  the  United  States,  to  wit,  clerk  of  the  Dis- 
trict Court  of  the  United  States  for  the  district  of  Massachusetts, 
and  on  said  first  day  of  February,  in  the  year  nineteen  hundred 
and  nine,  had  in  his  possession  and  under  his  control,  to  wit,  at 
Boston  aforesaid,  certain  public  moneys  of  the  United  States,  a 

409 


410  FORM   OF   INDICTMENT 

particular  description  whereof  is  to  said  grand  jurors  unknown, 
to  wit,  moneys  to  the  amount  and  of  the  value  of  three  hundred 
and  eighty-seven  dollars,  which  during  said  year  nineteen  hun- 
dred and  eight  had  come  into  his  possession  and  under  his  con- 
trol in  the  execution  of  his  office  as  such  officer,  and  under  au- 
thority and  claim  of  authority  as  such  officer,  and  were  a  portion 
of  a  surplus  of  fees  and  emoluments  of  his  said  office  over  and 
above  the  compensation  and  allowances  authorized  by  law  to  be 
retained  by  him  for  said  year  nineteen  hundred  and  eight,  which 
said  public  moneys  said  Frank  H.  Mason,  on  said  first  day  of 
February,  in  the  year  nineteen  hundred  and  nine,  as  such  officer, 
was  charged,  by  certain  acts  of  Congress,  to  wit,  sections  823,  828, 
and  844,  of  the  Revised  Statutes  of  the  United  States,  and  the  Act 
approved  June  28,  1902,  32  Statutes  at  Large,  chapter  1301,  and 
by  divers  other  Acts  of  Congress,  safely  to  keep ;  that  said  Frank 
H.  Mason,  on  said  first  day  of  February,  in  the  year  nineteen 
hundred  and  nine,  at  Boston  aforesaid,  the  same  public  moneys 
unlawfully  did  fail  safely  to  keep  as  required  by  said  Acts  of 
Congress,  and,  on  the  contrary,  the  same  then  and  there  unlaw- 
fully did  convert  to  his  o^^^l  use,  and  that  thereby  said  Frank  H. 
Mason  then  and  there  w^as  guilty  of  embezzlement  of  said  public 
moneys  so  converted." 

For  Loss  of  Life  by  Misconduct  of  Officers,  Owners,  Charterers,  In- 
spectors, Etc.,  of  Vessels,  Under  Section  282. 

(Approved  in  U.  S.  vs.  Van  Sehaick,  134  Federal,  594.) 

Indictment  No.  1  charges  that  Van  Sehaick  was — 
Guilty  of  misconduct,  negligence  and  inattention  to  duty  on 
such  vessel  as  such  master  and  captain,  in  that  he  then  and  there 
unlawfully  had  and  kept  on  said  vessel,  among  other  life  pre- 
servers, adjustable  to  the  bodies  of  human  beings,  which  had 
been  placed  thereon  for  the  use  of  the  passengers  and  other  per- 
sons on  board  of  the  said  vessel  in  case  of  emergency,  and  in- 
tended for  such  use,  divers,  to  wit,  nine  hundred  and  upwards, 
unsuitable,  inefficient,  and  useless  life  preservers;  that  is  to  say, 
in  the  respect  that,  according  to  the  laws  relating  thereto,  and 
the  regulations  thereunder,  the  said  life  preservers  on  said  vessel 
were  required  to  be  in  good  order  and  accessible  for  immediate 
use,  adjustable  to  the  bodies  of  passengers,  and  made  of  good 
sound  cork  blocks,  or  other  suitable  material,  with  belts  and 


FORM   OF  INDICTMENT  411 

shoulder-straps  properly  attached  in  the  manner  prescribed  by 
the  laws  of  Congress  relating  thereto  and  the  rules  and  regula- 
tions thereunder  as  aforesaid,  and  that  every  such  life  preserver 
should  contain  at  least  six  pounds  of  good  cork,  which  should 
have  a  buoyancy  of  at  least  four  pounds  to  each  pound  of  cork; 
but  in  truth  and  in  fact,  large  numbers  of  the  same,  to  the  amount 
of  nine  hundred  and  upwards,  as  aforesaid,  through  the  unlawful 
misconduct,  negligence,  and  inattention  to  his  duties  by  the  said 
master  and  captain  as  aforesaid,  were  unsafe,  unsuitable,  and 
imserviceable,  so  that,  at  the  times  aforesaid,  while  the  said 
William  H.  Van  Schaick  was  master  and  captain  as  aforesaid, 
or  the  said  steamboat,  the  said  life  preservers,  in  large  numbers, 
to  wit,  nine  hundred  of  the  same  and  upwards,  were  utterly  use- 
less for  the  protection  and  saving  of  human  life,  in  that,  in  many 
instances,  the  covers  thereof  were  rotten,  and  not  of  sufficient 
strength  and  soimdness  to  make  them  impervious  to  water,  and 
the  shoulder-straps  and  bands  of  the  same  were  so  decayed  that 
it  was  impossible  to  securely  fasten  the  said  life  preservers  to 
the  human  body;  and  the  said  life  preservers  did  not  have  the 
buoyancy  required  by  law;  and  the  unsuitability  and  the  ineffi- 
ciency and  uselessness  of  the  said  life  preservers  for  the  purpose 
which  they  were  intended  to  serve  should  have  been  known  to  the 
said  "William  H.  Van  Schaick,  and  he  might,  by  the  exercise  of 
ordinary  observation  and  inquiry,  have  ascertained  the  same,  and 
should  so  have  ascertained  before  the  said  vessel  started  on  the 
excursion  hereinafter  mentioned;  and  which  said  unsuitable  and 
inefficient  appliances,  he,  the  said  William  H.  Van  Schaick,  not- 
withstanding the  premises,  unlawfully  caused,  suffered,  and  per- 
mitted to  be  and  remain  on  said  vessel,  and  he  was  guilty  of  mis- 
conduct, negligence  and  inattention  to  his  duties  upon  said  ves- 
sel, in  that  he  permitted  the  said  vessel  to  go,  and  took  the  said 
vessel,  on  said  excursion,  with  the  said  unsuitable  and  ineffi- 
cient life  preservers  on  board,  and  caused,  suffered,  and  permitted 
the  same  to  be  tendered  and  held  out  for  the  use  of  the  passengers 
and  other  persons  on  board  of  said  steamboat,  at  the  time  of  her 
destruction  by  fire  as  hereinafter  mentioned. 


412  FORM   OF  INDICTMENT 

For  Conspiracy  to  Violate  the  Lottery  Statute. 

(Champion  vs.  Ames,  47  Law  Ed.,  496.) 

The  indictment  charged,  in  its  first  count,  that  on  or  about  the 
1st  day  of  February,  A.  D.  1899,  in  Dallas  County,  Texas,  "C. 
F.  Champion,  alias  W.  W.  Ogden,  W.  F.  Champion,  and  Charles 
B.  Park,  did  then  and  there  unlawfully,  knowingly,  and  felon- 
iously conspire  together  to  commit  an  offense  against  the  United 
States,  to  wit,  for  the  purpose  of  disposing  of  the  same,  to  cause 
to  be  carried  from  one  state  to  another  in  the  United  States,  to 
wit,  from  Dallas,  in  the  State  of  Texas,  to  Fresno,  in  the  State 
of  California,  certain  papers,  certificates,  and  instruments  pur- 
porting to  be  and  representing  tickets,  as  they  then  and  there 
well  knew,  chances,  shares,  and  interests  in  and  dependent  upon 
the  event  of  a  lottery,  offering  prizes  dependent  upon  lot  and 
chance,  that  is  to  say,  caused  to  be  carried,  as  aforesaid,  for  the 
purpose  of  disposing  of  the  same,  papers,  certificates,  or  instru- 
ments purporting  to  be  tickets  to  represent  the  chances,  shares, 
and  interests  in  the  prizes  which  by  lot  and  chance  might  be 
awarded  to  persons,  to  these  grand  jurors  unknown,  who  might 
purchase  said  papers,  certificates,  and  instruments,  representing 
and  purporting  to  be  tickets,  as  aforesaid,  with  the  numbers 
thereon  shown  and  indicated  and  printed,  which  by  lot  and 
chance  should  be  on  a  certain  day,  draw  a  prize  or  prizes  at  the 
purported  lottery  or  chance  company,  to  wit,  at  the  purported 
monthly  drawing  of  the  so-called  Pan-American  Lottery  Com- 
pany, which  purported  to  draw  monthly  at  Asuncion,  Paraguy, 
which  said  Pan-American  Lottery  Company  purported  to  be  an 
enterprise  offering  prizes  dependent  upon  lot  and  chance,  the 
specific  method  of  such  drawing  being  unknown  to  the  grand 
jurors,  but  which  said  papers,  certificates,  and  instruments  pur- 
porting to  be  and  representing  tickets  upon  their  face  purporting 
to  be  entitled  to  participation  in  the  drawing  for  a  certain  cap- 
ital prize  amounting  to  the  sum  of  $32,000,  and  which  said 
drawings  for  said  capital  prize,  or  the  part  or  parts  thereof  allot- 
ted or  to  be  allotted  in  conformity  with  the  scheme  of  lot  and 
chance,  were  to  take  place  monthly,  the  manner  and  form  of 


FORM   OF   INDICTMENT  413 

which  is  to  the  grand  jurors  imknown,  but  that  said  drawing  and 
lot  and  chance  by  which  said  prize  or  prizes  were  to  be  drawn 
was  purported  to  be  under  the  supervision  and  direction  of 
Enrigue  Montes  de  Leon,  manager,  and  Bernardo  Lopez,  inter- 
vener, and  which  said  papers,  certificates,  and  instruments  pur- 
porting to  be  tickets  of  the  said  Pan-American  Lottery  Company 
were  so  divided  as  to  be  called  whole,  half,  quarter,  and  eighth 
tickets,  the  whole  tickets  to  be  sold  for  the  sum  of  $2,  the  half 
tickets  for  the  sum  of  $1,  the  quarter  tickets  for  the  sum  of  50 
cents,  and  the  eighth  tickets  for  the  sum  of  25  cents. ' ' 

The  indictment  further  charged  that  "in  pursuance  to  said 
conspiracy,  and  to  effect  the  object  thereof,  to  wit,  for  the  pur- 
pose of  causing  to  be  carried  from  one  state  to  another  in  the 
United  States,  to  wit.  from  the  State  of  Texas  to  the  State  of 
California  aforesaid,  for  the  purpose  of  disposing  of  the  same, 
papers,  certificates,  and  instruments  purporting  to  be  and  repre- 
senting tickets,  chances,  and  shares  and  interests  in  and  de- 
pendent upon  lot  and  chance,  as  aforesaid,  as  they  then  and 
there  well  knew,  said  W.  F.  Champion  and  Charles  B.  Pard  did 
then  and  there,  to  wit,  on  or  about  the  last  day  aforesaid,  in  the 
Dallas  Division  of  the  Northern  District  of  Texas  aforesaid,  un- 
lawfully, knowingly,  and  feloniously,  for  the  purpose  of  being 
carried  from  one  State  to  another  in  the  United  States,  to  wit. 
from  Dallas,  in  the  State  of  Texas,  to  Fresno,  in  the  State  of 
California,  for  the  purpose  of  disposing  of  the  same,  deposit  and 
cause  to  be  deposited  and  shipped  and  carried  with  and  by  the 
Wells-Fargo  Express  Company,  a  corporation  engaged  in  carry- 
ing freight  and  packages  from  station  to  station  along  and  over 
lines  of  railway,  and  from  Dallas,  Texas,  to  Fresno,  California, 
for  hire,  one  certain  box  or  package  containing,  among  other 
things,  two  whole  tickets  or  papers  or  certificates  of  said  pur- 
ported Pan-American  Lottery  Company,  one  of  which  said  whole 
tickets  is  hereto  annexed  by  the  grand  jury  to  this  indictment 
and  made  a  part  hereof." 


414  FORM   OF   INDICTMENT 

Under  Section  5508,  Conspiracy  to  Endanger,  Etc.,  Citizens  in  the 
Exercise  of  Civil  Rights. 

(157  Federal,  page  722.) 

Omitting  formal  parts,  the  eleventh  count  of  the  indictment 
is  as  follows: 

That  on  the  1st  day  of  Jime,  1906,  the  defendants  (naming 
them)  did  unlawfully  and  feloniously  conspire,  combine,  con- 
federate, and  agree  together  to  injure,  oppress,  threaten  and  in- 
timidate a  certain  citizen  of  the  United  States,  to  wit.  John 
Reed,  in  the  free  exercise  and  enjoyment  of  rights  and  privi- 
leges secured  to  him  by  the  Constitution  and  laws  of  the  rnit(Hl 
States,  to  wit.  the  right  to  the  free  exercise  and  enjoyment  of 
freedom  from  involuntary  servitude  and  slaverv ;  that  in  pur- 
suance of  said  unlawful  and  felonious  conspiracy,  coml)inati()n. 
confederation,  and  agreement,  and  to  effect  the  object  thereof, 
the  said  defendants  (naming  them)  did  then  and  there  unlaw- 
fully and  feloniously  arrest,  hold,  imprison,  and  guard  him.  the 
said  John  Reed,  and  then  and  there  unlawfully  and  feloniously 
compel  by  threats  and  intimidation  him.  the  said  John  Reed,  to 
then  and  there  work  and  labor  involuntarily  and  against  his  will 
for  said  defendants  (naming  them),  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  United  States. 

Under  Peonage  Statute. 

(United  States  vs.  McClellan.  127  Federal,  page  971.) 

The  grand  jurors  of  the  United  States,  selected,  chosen,  and 
sworn  in  and  for  the  Eastern  Division  of  the  Southern  District 
of  Georgia,  upon  their  oaths  present :  That  heretofore,  to  wit,  on 
the  eleventh  day  of  August  in  the  year  of  our  Lord  one  thou- 
sand nine  hundred  and  two,  one  Thomas  J.  McClellan,  late  of 
said  division  and  district,  within  said  division  and  district,  and 
within  the  jurisdiction  of  this  court,  did  then  and  there  know- 
ingly and  unlaw'fully  cause  one  John  Wesley  Boney  to  be  held 
to  a  condition  of  peonage ;  for  that  the  said  Thomas  J.  McClellan 


FORM   OF   INDICTMENT  415 

in  the  county  of  Ware,  in  the  State  of  Georgia,  did  forcibly 
seize  the  body  of  the  said  John  Wesley  Boney,  without  his  con- 
sent and  without  authority  of  law,  and  did  then  and  there  sell 
the  body  of  the  said  John  Wesley  Boney,  without  his  consent  and 
without  authority  of  law,  to  Edward  J.  McRee,  William  McRee, 
and  Frank  I.  McRee,  then  and  there  causing  him,  the  said  John 
Wesley  Boney,  to  be  held  by  the  said  Edward  J.  McRee,  William 
McRee,  and  Frank  I.  McRee  to  a  condition  of  peonage ;  for  that 
the  said  Edward  J.  McRee,  William  McRee,  and  Frank  I.  McRee 
then  and  there  having  obtained  the  custody  of  the  body  of  the 
said  John  Wesley  Boney,  did  then  and  there,  by  force  and 
against  the  will  of  him,  the  said  John  Wesley  Boney,  and  with- 
out authority  of  law,  transport  the  body  of  the  said  John  Wesley 
Boney  to  the  county  of  Lowndes,  in  said  State,  and  did  then  and 
there  hold  the  said  John  Wesley  Boney.  against  his  will,  to  labor 
for  them,  to  work  out  a  debt  which  they,  the  said  Edward  J. 
McRee,  William  McRee,  and  Frank  I.  IMcRee,  claimed  to  be  due 
them  by  the  said  John  Wesley  Boney,  and  to  labor  under  the 
terms  of  an  alleged  contract  between  them,  the  said  Edward  J. 
McRee.  William  McRee,  and  Frank  I.  IMcRee,  and  the  said  John 
Wesley  Boney;  he,  the  said  Thomas  J.  McClellan,  then  and  there 
well  knowing  that  the  said  John  AA^esley  Boney  would  be  so 
held  as  aforesaid  by  the  said  Edward  J.  McRee,  William  McRee. 
and  Frank  I.  McRee ;  whereby,  in  the  manner  aforesaid,  the  said 
Thomas  J.  McClellan  did  cause  the  said  John  Wesley  Boney  to 
be  held  to  a  condition  of  peonage;  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  United  States." 

For  Returning-  One  To  Peonage. 

(Page  727.  49  Law  Ed.;  approved  in  Clyatt  vs.  U.  S..  by  the 
Supreme  Court,  197  U.  S.,  207.) 

The  grand  jurors  of  the  United  States  of  America  impaneled 
and  sworn  within  and  for  the  district  aforesaid,  on  their  oaths 
present  that  one  Samuel  M.  Clyatt,  heretofore,  to  wit :  on  the 
eleventh  day  of  February,  in  the  year  of  our  Lord  one  thousand 


416  FORM   OF   INDICTMENT 

nine  hundred  and  one,  in  the  county  of  Levy,  State  of  Florida, 
within  the  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  did  then  and  there  unlawfully  and  knowingly  return  one 
Will  Gordon  and  one  Mose  Ridley  to  a  condition  of  peonage,  by 
forcibly,  and  against  the  will  of  them,  the  said  Will  Gordon  and 
the  said  Mose  Ridley,  returning  them,  the  said  Will  Gordon  and 
Mose  Ridley,  to  work  to  and  for  Samuel  ^I.  Clyatt  and  II.  II. 
Tift,  co-partners  doing  business  under  the  firm  name  and  style  of 
Clyatt  &  Tift,  to  be  held  by  them,  the  said  Clyatt  &  Tift,  to  work 
out  a  debt  claimed  to  be  due  to  them,  the  said  Clyatt  &  Tift,  by 
the  said  Will  Gordon  and  Mose  Ridley ;  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  United  States." 

For  Polygamy,  Under  Section  313,  Approved  by  Supreme  Court  in 
Cannon  vs.  United  States,  116  U.  S.,  55,  29  Law  Ed.,  563. 

The  grand  jury  of  the  United  States  of  America,  within  and 
for  the  district  aforesaid,  in  the  territory  aforesaid,  being  duly 
empaneled  and  sworn,  on  their  oaths  do  find  and  present :  that 
Angus  M.  Cannon,  late  of  said  district,  in  the  territory  aforesaid, 
to  wit :  on  the  first  day  of  Jime,  in  the  year  of  our  Lord  1882. 
and  on  divers  other  days  and  continuously  between  the  said  first 
day  of  Jime,  A.  D.  1882.  and  the  first  day  of  February,  A.  D. 
1885,  at  the  County  of  Salt  Lake  and  Territory  of  Utah,  did  un- 
lawfully cohabit  with  more  than  one  woman,  to  wit :  one  Amanda 
Cannon  and  one  Clara  C.  Mason,  sometimes  kno^^Ti  as  Clara  C. 
Cannon,  against  the  form  of  the  statute  of  the  said  United  States 
in  such  case  made  and  provided,  and  against  the  peace  and  dig- 
nity of  the  same. 

Under  Section  3242  as  Amended  Illegal  Retail  Liquor  Dealer,  Ap- 
proved in  Ledbetter  vs.  U.  S.,  170  U.  S.,  608,  42  Law  Ed.,  1162. 

That  Lewis  Ledbetter.  late  of  said  district,  heretofore,  to  wit. 
on  the  10th  day  of  April.  A.  D.  1896,  in  the  County  of  Appa- 
noose, and  towTi  of  Dallas,  in  the  Southern  District  of  Iowa,  and' 
-sdthin  the  jurisdiction  of  this  court,  did  then  and  there  wilfully, 
unlawfullv.  and  feloniouslv  carr\'  on  the  business  of  a  retail 


FORM   OF  INDICTMENT  417 

liquor  dealer  without  first  having  paid  the  special  tax  therefor, 
as  required  by  law,  contrary  to  the  statute  in  sueh  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  United  States 
of  America. 

For  Sale  of  Oleomargarine  Not  Properly  Marked  and  Branded ;  Ap- 
proved in  Ex  Parte  Kollock,  165  U.  S.,  526,  Law  Ed.,  814. 

The  first  indictment  against  Kollock  set  forth  that  pursuant  to 
the  authority  conferred  on  the  Commissioner  of  Internal  Revenue 
by  the  6th  section  of  the  Act  of  August  2,  1886,  "the  said  com- 
missioner, with  the  approval  of  the  Secretary  of  the  Treasury, 
did,  on  the  twelfth  day  of  March,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety-one,  prescribe  certain  regu- 
lations, in  substance  and  to  the  effect,  among  other  things,  that 
the  wooden  or  paper  packages  in  which  retail  dealers  in  oleo- 
margarine were  required  by  said  Act  of  Congress  to  pack  the 
oleomargarine  sold  by  them,  such  retail  dealers,   should  have 
printed  or  branded  upon  them  in  the  case  of  each  sale,  the  name 
and  address  of  the  retail  dealer  making  the  same ;  likewise,  the 
words  'pound'  and  'oleomargarine'  in  letters  not  less  than  one- 
fourth  of  one  inch  square,  and  likewise  a  figure  or  figures  of  the 
same  size,  indicating  (in  connection  with  the  said  words  'pound' 
and   'oleomargarine'),   the   quantity   of  oleomargarine  so   sold, 
written,  printed,  or  branded  on  such  wooden  or  paper  packages 
and  placed  before  the  said  word  'pound,'  and  that  the  said  words 
'oleomargarine'  and  'poimd'  so  required  to  be  printed  or  brand- 
ed on  such  packages  as  aforesaid  in  the  case  of  each  sale  as  afore- 
said, and  the  said  figure  or  figures  so  indicative  of  quantity  as 
aforesaid  in  the  case  of  each  sale  as  aforesaid,  and  so  required 
to  be  written,  printed,  or  branded  on  such  packages  as  aforesaid 
should  be  so  placed  thereon  as  to  be  plainly  visible  to  the  pur- 
chaser at  the  time  of  the  delivery  to  him,  such  purchaser,  by 
retail  dealers  of  the  oleomargarine  sold  to  such  purchaser  by 
them,  such  retail  dealers." 

And  thus  continued : 

"That  on  the  fourteenth  day  of  January,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-six,  and  at  the 


418  FORM   OF    INDICTMENT 

District  aforesaid,  one  Israel  C.  KoUock,  late  of  the  District  afore- 
said, being  then  and  there  engaged  in  business  as  a  retail  dealer 
in  oleomargarine,  at  a  store  of  him,  the  said  Israel  C.  KoUock, 
situated  on  Fourth  Street,  southeast,  in  the  city  of  "Washington, 
in  the  said  district,  did  then  and  there,  and  at  said  store  know- 
ingly sell  and  deliver  to  a  certain  Florence  Davis  one-half  of  one 
pound  of  oleomargarine  as  and  for  butter,  which  said  one-half  of 
one  pound  of  oleomargarine  was  not  then  and  there  and  at  the 
time  of  such  sale  and  delivery  thereof,  packed  in  a  new  wooden 
or  paper  package  having  then  and  there  printed  or  branded 
thereon  the  name  and  address  of  him,  the  said  Israel  C.  Kollock, 
in  letters  one-fourth  of  one  inch  square,  and  the  words  'pound' 
and  'oleomargarine'  in  letters  of  like  size,  and  a  figure  or  figures 
of  like  size  written,  printed,  or  branded  thereon  indicative  (in 
connection  with  the  said  words  'pound'  and  'oleomargarine')  of 
the  quantity  of  oleomargarine  so  sold  and  delivered  to  her,  the 
said  Florence  Davis,  as  aforesaid,  and  which  said  one-half  of  one 
poimd  of  oleomargarine  at  the  time  it  was  so  knowingly  sold  and 
delivered  to  her,  the  said  Florence  Davis,  as  aforesaid,  by  him, 
the  said  Israel  C.  Kollock.  as  aforesaid,  was  then  and  there  and  at 
the  time  of  the  sale  and  delivery  thereof  as  aforesaid  packed  in  a 
paper  package  upon  which  there  had  not  been  printed,  branded, 
or  written  any  or  either  of  the  marks  and  characters  aforesaid 
so  required  by  the  said  regulations  to  be  placed  thereon  as  afore- 
said, as  he,  the  said  Israel  C.  Kollock,  then  and  there  well  knew, 
against  the  form  of  the  statute,  etc.,  etc." 

For  Conspiracy  to  Violate  Section  5358,  to  Plunder  or  Steal  from 
Vessel,  (7  Federal,  716). 

The  indictment  alleges  that  the  defendants — 

"Did  conspire,  combine,  confederate,  and  agree  together,  be- 
tween and  among  themselves,  to  plunder  certain  goods  and  mer- 
chandise, a  more  particular  description  of  which  said  goods  and 
merchandise  being  to  the  grand  jurors  aforesaid  unkno-uTi,  then 
and  there  belonging  to  the  steamboat  City  of  Vicksburg,  the  said 
steamboat  being  then  and  there  wrecked  and  in  distress  on  the 
waters  of  the  Mississippi  Riyer,  within  the  admiralty  and  mar- 


FORM   OF   INDICTMENT  419 

itime  jurisdiction  of  the  United  States,  while  engaged  in  com- 
merce and  navigation  in  said  river,  to  wit,  between  Vicksburg,  in 
the  State  of  Mississippi,  and  St.  Louis,  in  the  State  of  Missouri; 
and  that,  to  effect  the  object  of  the  said  conspiracy  the  said  Her- 
cules Sanche  then  and  there  furnished  and  loaned  to  the  said 
John  Woods  and  Elias  Boatright  a  certain  skitf  to  be  used  by 
them,  the  said  AVoods  and  the  said  Boatright,  in  plundering  said 
goods  and  merchandise  from  the  said  steamboat." 

Under  Section  5438,   (Bridgeman  vs.  United  States,  140  Federal, 

578). 

The  twenty-first  count  is  in  these  words : 

"And  the  grand  jurors  aforesaid,  upon  their  oaths  and  affirma- 
tions aforesaid,  do  further  find,  charge  and  present:  That  one 
Morris  L.  Bridgeman.  late  of  the  State  and  district  of  Montana, 
before  and  on  the  5th  day  of  October,  A.  D.  1901,  and  thence- 
forth until  and  on  and  after  the  31st  day  of  January,  A.  D. 
1902,  was  then  and  there  the  United  States  Indian  Agent  at  and 
of  the  Fort  Belknap  Indian  reservation,  in  the  State  and  district 
of  Montana.  That  on  the  said  31st  day  of  January,  A.  D.  1902, 
in  the  State  and  district  of  Montana,  the  said  Morris  L.  Bridge- 
man.  United  States  Indian  Agent  as  aforesaid,  did  then  and 
there  knowingly,  wilfully,  and  unlawfully  make  and  cause  to  be 
made,  and  present  and  cause  to  be  presented,  for  approval,  to  the 
Commissioner  of  Indian  Affairs  of  the  United  States,  being  then 
and  there  an  officer  of  the  civil  service  of  the  United  States,  a 
false,  fictitious,  and  fraudulent  claim  upon  and  against  the  gov- 
ernment of  the  United  States  for  the  sum  of  two  hundred  and 
eighty-five  dollars  and  eighty-eight  cents;  that  is  to  say,  a  cer- 
tain claim  purporting  that  the  said  Morris  L.  Bridgeman,  as 
United  States  Indian  Agent  as  aforesaid,  had  then  and  there  ex- 
pended and  paid  the  said  sum  of  two  hundred  and  eighty-five 
dollars  and  eighty-eight  cents  to  two  certain  Indians,  to  wit. 
Turns  Around  and  Bracelet,  in  payment  of  fourteen  thousand 
two  hundred  and  ninety-four  feet  of  rough  lumber,  and  that  the 
said  aggregate  sum  of  two  hundred  and  eighty-five  dollars  and 
eighty-eight  cents  had  been  so  expended  and  paid  by  said  ]\Iorris 


420  FORM   OF   INDICTMENT 

L.  Bridgeman,  as  United  States  Indian  Agent,  as  aforesaid  by 
paying  to  said  Indian,  Turns  Around,  the  sum  of  eighty-five 
dollars  and  eighty-eight  cents  for  four  thousand  two  hundred  and 
ninety-four  feet  of  rough  lumber,  and  by  paying  to  said  Indian, 
Bracelet,  the  sum  of  two  hundred  dollars  for  ten  thousand  feet 
of  rough  lumber.  That  the  said  claim  was  then  and  there,  to  wit,  at 
the  time  of  the  making  and  presenting  thereof  as  aforesaid,  false, 
fictitious,  and  fraudulent  in  this :  that  the  said  Morris  L.  Bridge- 
man,  United  States  Indian  Agent,  as  aforesaid,  had  not  paid  the 
said  sum  of  two  hundred  and  eighty-five  dollars  and  eighty- 
eight  cents  to  said  Indians,  Turns  Around  and  Bracelet,  or  either 
of  them,  in  payment  of  fourteen  thousand  two  hundred  and 
ninety-four  feet  of  rough  lumber,  and  had  not  paid  to  said  In- 
dian, Turns  Around,  the  sum  of  eighty-five  dollars  and  eighty- 
eight  cents  for  four  thousand  two  hundred  and  ninety-four  feet 
of  rough  lumber,  and  had  not  paid  to  said  Indian,  Bracelet,  the 
sum  of  two  hundred  dollars  for  ten  thousand  feet  of  rough  lum- 
ber; and  that  the  said  Morris  L.  Bridgeman,  United  States  In- 
dian Agent,  as  aforesaid,  was  not  then  and  there  entitled  to 
have  the  said  claim,  so  made  and  presented  by  him,  as  aforesaid, 
approved,  he,  the  said  Morris  L.  Bridgeman,  United  States  In- 
dian Agent,  as  aforesaid,  at  the  time  of  so  making  and  present- 
ing the  said  claim,  then  and  there  well  knowing  the  same  to  be 
false,  fictitious,  and  fraudulent.  And  so  the  grand  .jurors  afore- 
said, upon  their  oaths  aforesaid,  do  say  that  the  said  IMorris  L. 
Bridgeman,  United  States  Indian  Agent,  as  aforesaid,  in  the 
State  and  district  of  IMontana,  and  in  manner  and  form  afore- 
said, did,  on  the  thirty -first  day  of  January,  A.  D.  1902,  make 
and  cause  to  be  made,  and  present  and  cause  to  be  presented,  for 
approval,  to  the  said  Commissioner  of  Indian  Affairs  of  the  Uni- 
ted States,  a  claim  upon  and  against  the  Government  of  the 
United  States,  which  said  claim,  he,  the  said  IMorris  L.  Bridge- 
man,  then  and  there  well  knew  to  be  false,  fictitous  and  fraudu- 
lent, contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  United  States 
of  America." 


FORM   OF   INDICTMENT  421 

Under  Section  39,  (Vernon  vs.  United  States,  146  Federal,  122). 

"That  J.  B.  Vernon,  whose  Christian  name  is  to  the  grand  jur- 
ors aforesaid  unknown,  on  the  1st  day  of  August,  in  the  year  1902, 
in  the  Northern  Division  of  the  Eastern  Judicial  District  of  Mis- 
souri, and  within  the  jurisdiction  of  this  court,  did  unlawfully, 
feloniously  and  corruptly  offer  and  give  a  large  sum  (the  exact 
amount  thereof  being  to  the  grand  jurors  aforesaid  lmlalo^^Tl)  of 
the  lawful  money  of  the  United  States  to  one  Charles  L.  Blanton, 
who  was  then  and  there,  as  he  the  said  J.  B.  Vernon  then  and 
there  well  knew,  a  person  acting  for  and  on  behalf  of  the  United 
States  in  an  official  function,  under  and  by  the  authority 
of  a  department  of  the  Government,  to  wit,  the  Treasury 
Department  of  the  United  States,  with  the  intent  then 
and  there  of  him.  the  said  J.  B.  Vernon,  to  unlawfully, 
feloniously  and  corruptly  influence  the  action  of  the  said  Charles 
L.  Blanton  on  a  matter  then  and  there  pending  before  him  in 
said  official  function  as  aforesaid,  that  is  to  say,  in  making  ex- 
amination of  and  reporting  and  recommending  to  the  Secretary 
of  the  Treasury  a  site  for  a  United  States  post-office  at  Kirks- 
ville,  Missouri,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided  and  against  the  peace  and  dignity  of  the 
United  States." 

For  Larceny  of  Personal  Property  of  United  States,  Under  Section 
46,  (United  States  vs.  Jones,  69  Fed.,  973). 

The  first  count  of  the  indictment  charged  that  the  defendant, 
on  the  fifteenth  day  of  June,  1893.  and  before  the  finding  of  this 
indictment, — 

"Did  unlawfully  and  feloniously  take,  steal  and  carry  away 
from  the  United  States  :Mint  at  Carson  City,  State  and  District 
of  Nevada,  personal  property,  to  wit,  gold  metal,  which  said  per- 
sonal property  belonged  to  the  United  States  of  America,  and 
which  said  personal  property  was  of  the  value  of  $23,000;  the 
said  unlawful  and  felonious  taking  and  carrying  away  being  with 
the  intent,  then  and  there,  to  steal  the  said  property,  and  defraud 
the  United  States  of  America  thereof,"  etc. 


422  FOKM   OF   INDICTMENT 

Under  Section  79,   (Green  vs.  United  States,  150  Federal,  561). 

''He,  the  said  John  Francis  Green,  then  and  there  being  at 
the  time  and  place  of  said  registration  as  aforesaid,  came  in 
person  before  Frank  Asche  Faron,  then  and  before  that  time 
being  a  deputy  registrar  of  voters  at  said  registration  for  said 
election   aforesaid,   and   made   application   and   made   and  sub- 
scribed an  affidavit  for  the  purpose  of  causing  himself  to  be  reg- 
istered as  a  voter  at  said  registration,  for  said  election;  and  the 
said  John  Francis  Green  so  making  the  said  application  to  be 
registered  at  said  registration,  at  and  upon  the  making  of  said 
affidavit,  it  became  and  was  then  and  there  material  to  know 
whether  the  said  John  Francis  Green  had  been  naturalized  as  a 
citizen  of  the  United  States  of  America;  and,  thereupon,  the 
said  John  Francis  Green  then  and  there  was  in   due  manner 
sworn  by  the  said  Frank  Asche  Faron,  and  made  oath  before 
him  then  and  there  of  and  concerning  the  truth  of  the  matter 
contained  in  the  said  affidavit;  he,  the  said  Frank  Asche  Faron, 
then  and  there  being  said  deputy  registrar  of  voters  as  afore- 
said, and  having  then  and  there  competent  authority  to  admin- 
ister the  said  oath  to  the  said  John  Francis  Green  in  that  behalf ; 
and  the  said  John  Francis  Green  so  being  sworn  as  aforesaid, 
then  and  there,  in  and  by  his  said  affidavit,  wilfully,  corruptly, 
and  falsely,  and  contrary  to  his  said  oath,  did  depose  and  swear, 
as  in  the  said  affidavit  set  forth,  that  he  was  naturalized  in  the 
State  of  California  on  the  8th  day  of  November,  in  the  year 
1900,  whereas,  in  truth  and  fact,  as  the  said  John  Francis  Green 
well  knew  at  the  time  he  was  so  sworn  and  made  affidavit,  as 
aforesaid,  the  said  John  Francis  Green,  at  the  time  he  was  so 
sw^orn  and  made  affidavit,  as  aforesaid,  had  never  been  natural- 
ized as  a  citizen  of  the  United  States  of  America,  and  was  an 
alien." 

Under  Section  126,  Subornation  of  Perjury,    (Boren  vs.  United 
States,  144  Federal,  801). 

The  first  count  charges  that  the  accused,  "on  the  fourteenth 
day  of  November,  in  the  year  of  our  Lord  one  thousand  nine 
hundred  and  four,  at  Redding,  in  the  county  of  Shasta,  State 


FORj\[   OF   INDICTMENT  423 

and  Northern  District  of  California,  then  and  there  being,  did 
then  and  there  unlawfully,  wilfully,  knowingly,  and  feloniously 
procure,  instigate,  and  suborn  one  John  M.  Layton  to  appear  and 
take  an  oath  before  one  Frank  M.  Swasey  that  a  certain  declara- 
tion and  affidavit  by  him,  John  M.  Layton,  subscribed  was  true, 
said  declaration  and  affidavit  being  then  and  there  a  matter  in 
which  the  laws  of  the  United  States  authorize  an  oath  to  be  ad- 
ministered— that  is  to  say,  a  sworn  statement, — for  the  purchase 
of  timber  and  stone  lands  described  therein  as  the  northwest 
quarter  of  Section  eight,  township  thirty-two  north,  of  range 
eight  west,  in  the  district  of  lands  subject  to  sale  at  Redding, 
California,  and  said  Frank  M.  Swasey  was  then  and  there  an 
officer  competent  to  administer  said  oath — that  is  to  say,  the  reg- 
ister of  the  United  States  land  office  at  Redding, — and  that,  in 
accordance  with  said  procurement,  instigation,  and  subornation, 
the  said  Frank  M.  Layton  did  appear  before  the  said  Frank  M. 
Swasey  and  take  an  oath  that  said  declaration  and  affidavit  was 
true;  and  that  the  said  Ilarry  W.  IMiller.  Frank  E.  Kincart.  and 
William  H.  Boren,  and  each  of  them,  did  then  and  there  unlaw- 
fully, wilfully,  knowingly,  and  feloniously  procure,  instigate,  and 
suborn  said  John  ^[.  Layton  wilfully  and  contrary  to  his  oath 
to  state  and  subscribe  in  said  declaration  and  affidavit  a  certain 
false  and  untrue  material  statement  that  he.  John  M.  Layton. 
had  personally  examined  the  lands  mentioned  in  said  declaration 
and  affidavit,  and  that  he  did  not  apply  to  purchase  the  land 
aJKwe  described  on  speculation,  but  in  good  faith  to  appropriate 
it  to  his  own  exclusive  use  and  benefit,  and  that  he  had  not  di- 
rectly or  indirectly  made  any  agreement  or  contract,  or  in  any 
way  or  manner,  with  any  person  or  persons  whomsoever,  by 
which  the  title  he  might  acquire  from  the  United  States  may  in- 
ure in  whole  or  in  part  to  the  benefit  of  any  person  except  him- 
self, which  statement  he.  John  M.  Layton.  at  the  time  of  stating 
and  subscribing  the  same,  did  not  believe  to  be  true,  and  knew 
to  be  untrue,  in  this :  that  he.  John  M.  Layton  had  not  personally 
examined  said  lands,  and  had  theretofore  entered  into  a  contract 
for  the  sale  of  said  land  to  the  Washington  IMill  &  Lumber  Com- 
pany. And  that  the  said  Harry  W.  Miller.  Frank  E.  Kincart. 
and  William  H.  Boren.  and  each  of  them,  at  the  time  of  the  afore- 


424  I'ORM   OF   INDICTMENT 

said  procurement,  instigation,  and  subornation,  well  knew  that 
the  aforesaid  statement  was  a  false  and  untrue  material  state- 
ment, and  well  knew  that  said  John  M.  Layton  did  not  beheve 
the  same  to  be  true, ' ' 

Under  Section  Clause  of  Section  5395,  False  Oath  in  Naturalization, 
(Moore  vs.  United  States,  144  Fed.,  962). 

"That  George  K.  Moore,  to  wit,  on  the  10th  day  of  November, 
in  the  year  of  our  Lord  nineteen  hundred  and  two,  in  the  said 
district  and  within  the  jurisdiction  of  said  court,  in  a  proceeding 
for  naturalization  of  one  Setrak  G.  Moomjian,  then  and  there  in 
the  Common  Pleas  Division  of  the  Supreme  Court  of  the  State  of 
Khode  Island,  in  and  for  the  county  of  Providence  pending, 
knowingly  and  falsely  before  Alfred  O.  Makee,  a  notary  public 
in  and  for  the  County  of  Providence,  in  said  State  of  Rhode 
Island,   duly  qualified  and  authorized  to  administer  oaths  to 
persons  making  affidavits  in  proceedings  for  naturalization,  did 
make  a  false  affidavit  touching  matters  in  issue,  and  material  in 
said  proceedings  for  the  naturalization  of  said  Setrak  G.  Moom- 
jian; in  this,  to  wit,  that  he,  the  said  George  K.  Moore,  in  said 
affidavit  falsely  swore  that  he,  said  Setrak  G.  ]\Ioomjian,  had  re- 
sided in  Providence,  in  the  said  State  of  Rhode  Island,  for  seven 
years  last  past,  whereas  in  truth  and  in  fact,  the  said  Setrak  G. 
Moomjian  was  at  the  date  aforesaid,  to  wit,  on  the  10th  day  of 
November,  A.  D.  1902,  a  resident  of  the  commonwealth  of  Mas- 
sachusetts, to  wit,  the  city  of  Worcester,  and  was  not  a  resident 
of  the  State  of  Rhode  Island,  nor  had  he  been  such  resident  for 
a  period  of  more  than  one  year  next  before  the  10th  day  of  No- 
vember, A.  D.  1902.     And  the  grand  jurors  aforesaid,  on  their 
oath  aforesaid,  further  present  that  said  affidavit  so  as  aforesaid 
made  by  the  said  George  K.  Moore  was  false  and  untrue,  and 
was  by  the  said  George  K.  Moore  known  to  be  so  false  and  un- 
true at  the  time  of  the  making  thereof,  and  that  the  said  George 
K.  Moore  therein  swore  falsely  to  the  residence  of  said  Setrak 
G.  Moomjian,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the 
United  States. " 


FORM   OF  INDICTMENT  425 

For  Murder  on  the  High  Seas,  (St.  Clair  vs.  United  States,  Book 
38  Law  Ed.,  937). 

The  indictment  charged  that  Thomas  St.  Clair,  Herman  Sparf, 
and  Hans  Hansen,  mariners,  late  of  that  district,  on  the  13th 
day  of  January,  1893,  with  force  and  arms,  on  the  high  seas, 
and  within  the  jurisdiction  of  the  court,  and  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States,  and  out  of  the 
jurisdiction  of  any  particular  State  of  the  United  States,  in  and 
on  board  of  an  American  vessel,  the  bark  Hesper,  belonging  to 
a  citizen  or  citizens  of  the  United  States,  whose  name  or  names 
are  or  were  to  the  grand  jurors  unknowTi,  did,  with  a  certain  in- 
strument or  weapon  (the  character  and  name  of  which  were  to 
the  grand  jur}^  unknoA\Ta)  then  and  there  held  in  the  hands  of 
one  of  the  defendants  (but  of  which  particular  one  was  to  the 
grand  jurors  unkno-^ATi)  "then  and  there  piratically,  wilfully, 
and  feloniously,  and  with  malice  aforethought,  strike  and  beat 
the  said  Maurice  Fitzgerald,  then  and  there  giving  to  the  said 
Maurice  Fitzgerald,  several  grievous,  dangerous,  and  mortal 
woimds,  and  did  then  and  there,  to  wit,  at  the  time  and  place 
last  above  mentioned,  him  the  said  Maurice  Fitzgerald  cast  and 
throw  from  and  out  of  the  said  vessel  into  the  sea,  and  plunge, 
sink,  and  drown  him  the  said  Maurice  Fitzgerald  in  the  sea 
aforesaid ;  of  which  said  mortal  wounds,  casting,  throwing, 
plunging,  sinking,  and  dro^^^ling  the  said  Maurice  Fitzgerald 
in  and  upon  the  high  seas  aforesaid,  out  of  the  jurisdiction  of 
any  particular  State  of  the  United  States  of  America,  then  and 
there  instantly  died. 

"And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  by  reason  of  the  casting  and  throwing  the  said 
Maurice  Fitzgerald  in  the  sea  as  aforesaid,  they  cannot  describe 
the  said  mortal  wounds  or  the  character  and  nature  of  said 
weapon  or  instrument.  And  so  the  grand  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say  that  the  said  Thomas  St.  Clair,  Her- 
man Sparf,  and  Hans  Hansen,  him  the  said  Maurice  Fitzgerald 
at  the  time  and  place  as  aforesaid,  upon  the  high  seas  as  afore- 
said, out  of  the  jurisdiction  of  any  particular  State  of  the  Uni- 
ted States  of  America,  in  and  upon  the  said  American  vessel, 


426  FORM   OF   TXDTCTMENT 

within  the  jurisdiction  of  the  United  States  of  America  and  of 
the  admiralty  and  nuiritimc  jurisdiction  of  the  said  United 
States  of  America  and  of  this  court,  in  the  manner  and  form 
aforesaid,  piratically,  wilfully,  feloniously,  and  with  malice 
aforethought,  did  kill  and  murder,  against  the  peace  and  dignity 
of  the  United  States  of  America,  and  contrary  to  the  form  of  the 
statute  of  the  said  United  States  of  America,  in  such  case  made 
and  provided." 

For  Falsely  Certifying  Checks  Under  Section  5208. 
(Approved  in  Potter  vs.  U.  S..  155  U.  S.,  444;  39  Law  Ed..  215.) 

The  count,  after  stating  time  and  venue,  and  that  the  de- 
fendant was  president  of  the  Maverick  National  Bank,  and  au- 
thorized to  lawfully  certify  checks,  charged, 

"That  said  Potter  as  such  president  as  aforesaid,  did  then 
and  there,  to  wit,  on  said  twenty-third  day  of  July,  at  Boston, 
aforesaid,  Avithin  said  district,  and  within  the  jurisdiction  of  this 
court,  unlawfully,  knowingly,  and  wilfully  certify  a  certain 
check  which  said  check  was  then  and  there  drawn  upon  said  as- 
sociation for  the  amount  of  twenty-four  hundred  and  fifty  dollars 
by  certain  persons,  to  wit,  Irving  A.  Evans.  Austin  B.  Tobey, 
and  William  S.  Bliss,  copartners,  then  and  there  doing  business 
under  the  firm  name  and  style  of  Irving  A.  Evans  and  Company, 
and  wdiich  said  check  w^as  then  and  there  of  the  tenor  following 
— that  is  to  say: 

'Boston,    July    23,    1891.  $2450.  No.    54493. 

Maverick  National  Bank. 
Pay  to  the  order  of      Hay  ward  &  Townsend, 
$2450,  twenty-four  hundred  and  fifty  dollars. 

Irving  A.  Evans  &  Co.' 

by  then  and  there  w^riting,  placing,  and  putting  in  and  upon 
and  across  the  face  of  said  check  the  words  and  figures  following 
— ^that  is  to  say : 

'  Maverick  National  Bank. 

Certified  Jul.  23,  1891. 

Pay  only  through  clearing  house. 

A.  P.  Potter,  P.' 
(meaning  said   Asa   P.    Potter,   such   president   as   aforesaid.) 
' ,  Paying  Teller.' 


FORM   OF   INDICTMENT  427 

that  the  said  persons,  as  copartners  under  the  firm  name  and 
style  as  aforesaid,  by  whom  said  check  was  then  and  there  drawn 
as  aforesaid,  did  not  then  and  there,  to  wit.  at  the  time  said 
check  was  so  certified  by  said  Potter  as  aforesaid,  have  on  deposit 
with  said  association  an  amount  of  money  then  and  there  equal 
to  the  amount  then  and  there  specified  in  said  check,  to  wit. 
the  amoimt  of  twenty-four  hundred  and  fifty  dollars  in  money, 
as  he,  the  said  Potter,  then  and  there  well  knew,  against  the 
peace  and  dignity  of  the  United  States  and  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided." 

Under  Section  5209,  for  Embezzlement  by  Bank  Officers. 

(Approved  in  United  States  vs.  Northway,  120  U.  S..  327;  30 
Law  Ed.,  page  665.) 

The  count  charges  that  the  defendant,  with  proper  allegations 
of  time  and  place,  "was  then  and  there  president  and  agent 
of  a  certain  national  banking  association ;  to  wit,  '  The  Second 
National  Bank  of  Jefferson.'  theretofore  duly  organized  and  es- 
tablished and  then  existing  and  doing  business  in  the  Village 
of  Jefferson  and  County  of  Ashtabula,  in  the  division  and  dis- 
trict aforesaid,  under  the  laws  of  the  United  States;  and  the 
said  Stephen  A.  Northway,  as  such  president  and  agent,  then 
and  there  had  and  received  in  and  into  his  posvsession  certain  of 
the  moneys  and  funds  of  said  banking  association  of  the  amount 
and  value  of  twelve  thousand  dollars,  to  wit,  then  and  there 
being  the  property  of  said  banking  association,  and  then  and 
there  being  in  the  possession  of  said  Stephen  A.  Northway,  as 
such  president  and  agent  aforesaid,  he,  the  said  Stephen  A. 
Northway,  then  and  there  wrongfully,  unlawfully,  and  with 
intent  to  injure  and  defraud  said  banking  association,  did  em- 
bezzle and  convert  to  his,  said  Stephen  A.  Northway 's  own 
use."  etc. 

Under  Section  32  for  Falsely  Pretending  to  be  an  United  States 

Officer. 

did    then    and    there    unlawfully,    fraudulently,    and 


428  FORM   OF   INDICTMENT 

falsely  assume  and  pretend  to  be  an  officer,  acting  under  the  au- 
thority of  the  United  States,  to  wit,  a  Deputy  United  States 
Marshal,  and  did  then  and  there  take  upon  himself  to  act  as 
such  Deputy  United  States  Marshal,  and  did  then  and  there,  in 
such  pretended  character,  obtain  from five  dollars,  law- 
ful current  money  of  the  United  States  of  America,  and  of  the 

value  of  five  dollars,  w4th  the  intention  of  him,  the  said 

to  defraud  the  said :  and  the  said  five  dollars  was  ob- 
tained from  the  said by  the  said pretending  to 

be  an  officer  of  the  United  States,  as  aforesaid,  and  acting  under 
the  authority  of  the  United  States,  with  the  intention  of  him,  the 
said so  pretending  to  be  an  officer  as  aforesaid,  to  de- 
fraud the  said of  the  said  five  dollars,  and  the  value 

thereof:  all  of  which  was  against  the  peace,  etc. 

General  Form  for  Beginning  and  Ending  of  Indictment. 

At  a  regular  term  of  the  United  States  District  Court  for  the 
Northern  District  of  Texas,  begun  and  holden  at  Dallas,  Texas, 
on  the  second  Monday  of  January,  A.  D.  1911,  which  was  the 
eleventh  day  of  said  month,  the  grand  jurors  wherefor,  good  and 
lawful  men,  duly  selected,  empaneled,  sworn,  and  charged  to  in- 
quire into  and  a  true  presentment  make  of  all  crimes  and  ofi'enses 
cognizable  imder  the  authority  of  the  laws  of  the  United  States 
of  America,  committed  within  the  Northern  District  of  Texas, 
upon  their  oaths  present  into  open   Court  that  heretofore,  to 

wit,  etc., all  of  which  was  contrary  to  the  form  of  the 

statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  United  States  of  America. 


Foreman  of  the  Grand  Jury. 
District  Attorney. 


FORM   OF  INDICTMENT  429 

Under  Section  37  of  the  New  Code,  for  Conspiracy  Against  the 

United  States. 

that  heretofore,  to  wit,  on  the   day  of 

,  A.  D.  1910,  one  John  Doe  and  one  Richard  Roe, 

did  unlawfully,  fraudulently,  and  feloniously  conspire  together 
to  commit  an  oifense  against  the  United  States  of  America,  to 
wit,  to  transport  from  one  State  to  another  State  in  the  United 
States,  certain  obscene,  lewd,  and  lascivious  matter ;  and  he, 
the  said  John  Doe,  and  he,  the  said  Richard  Roe,  in  pursuance 
to  said  conspiracy,  and  to  effect  the  object  thereof,  did,  on  the 

day  of ,  transport,  carry,  and  send  from 

Dallas,  in  the  State  of  Texas,  to  Little  Rock,  in  the  State  of 
Arkansas,  certain  obscene,  lewd,  and  lascivious  pamphlets,  which 
said  obscene,  lewd,  and  lascivious  pamphlets  were  too  lewd,  ob- 
scene, and  lascivious  to  be  here  set  out  and  made  a  part  of  the 
records  of  this  honorable  Court,  but  which  said  pamphlets  began 

with  the  words and  ended  with  the  words ; 

contrary  to  the  form  of,  etc. 

Under  Section  211  of  the  New  Code,  Old  Section  3893,  for  Mailing 

Obscene  Matter. 

that  heretofore,  to  wit,  on  the    day  of 

,  John  Doe  did  unlawfully,  knowingly,  and  wil- 
fully, deposit  and  cause  to  be  deposited  in  the  United  States 
Post-office  at  Dallas,  Texas,  fo  rmailing  and  delivery,  certain 
non-mailable  matter;  that  is  to  say,  he,  the  said  John  Doe,  on 
the  date  aforesaid,  and  within  the  venue  aforesaid,  did  unlaw- 
fully, knowingly,  and  wilfully  deposit  and  cause  to  be  deposited, 
for  mailing  and  delivery  in  the  post-office  of  the  United  States 
at  Dallas,  Texas,  a  certain  envelope,  which  said  envelope  was 
duly  stamped  with  a  two-cent  United  States  postage  stamp,  and 
which  said  envelope  was  addressed  "Mrs.  Richard  Roe,  St. 
Louis,  i\Iissouri."  and  which  said  envelope,  so  stamped  and  so 
addressed,  and  so  deposited  and  caused  to  be  deposited,  then 
and  there  contained  one  sheet  of  paper,  upon  which  said  sheet 
of  paper  there  was  writing,  but  which  said  writing  is  too  obscene, 


430  FORM   OF    INDK.'TMENT 

lewd,  and  lascivious  to  be  here  set  out  and  made  a  part  of  the 
records  of  this  lionorable  Court,  but  which  said  writing  began 

and   ended ;   and   the   said   envelope   so 

deposited  and  caused  to  be  deposited,  and  so  containing  the  said 
sheet  of  paper,  with  the  writing  thereof  aforesaid,  was  by  hini, 
the  said  John  Doe,  so  deposited  and  caused  to  be  deposited,  with 
full  knowledge  upon  his  part  of  the  writing  aforesaid  upon  the 
said  sheet  of  paper,  and  the  import  thereof;  all  of  which  was 
contrary,  etc. 

Under  Section  192  of  the  New  Code,  Old  Section  5478,  for  Breaking 
Into  and  Entering  Post-office. 

did  unlawfully,  forcibly,  and  fehniiously,  break  into 

and  enter  a  certain  building  used  in  part  as  the  Post-office  of 

the   United   States  at  ,   with  the   intent  to  commit 

larceny  in  that  part  of  said  building  so  used  as  said  United 
States  Post-office  at  ;  contrary,  etc. 

Under  Section  215  of  the  New  Code,  old  Section  5480,  for  Use  of 
United  States  Mails  to  Promote  Fraud, 

.did  unlawfully,  knowingly,  and  fraudulently  devise 

a  scheme  and  artifice  to  defraud,  which  said  scheme  and  artifice 
to  defraud  was  to  be  effected  by  the  use  and  misuse  of  the  Uni- 
ted States  Post-office  establishment ;  and  in  furtherance  of  said 
scheme,  did  deposit  and  cause  to  be  deposited  in  the  United 
States  mails,  for  mailing  and  delivery,  divers  letters  and  pack- 
ets ;  which  said  scheme  and  artifice  to  defraud  was,  in  substance, 

as  follows,  to  wit :  that  the  said would  pretend  to  be 

engaged  in  the  legitimate  business  of  a  wholesale  dealer  in  pro- 
duce, able  and  willing  to  pay  for  consignments  of  produce,  and 
being  financially  responsible,  and  that  he  would  make  .prompt 
and  ready  remittance  for  such  consignments  of  produce  as  were 
made  to  him;  that  such  representations  would  be  made  to  pro- 
duce dealers  throughout  the  United  States  of  America  who  were 

residents  of  towns  other  than  that  in  which  the  said 

would  purport  to  carry  on  the  said  business;  that  when  the  said 


FORM   OF   INDICTMENT  431 

produce  dealers  residing  in  towns  other  than  that  in  which  the 

said would  purport  to  carry  on  said  business,  would 

make  consignments  in  answer  to  said  letters,  of  produce,  to  the 

said ,  that  the  said would  sell  the  said 

produce  and  convert  the  proceeds  thereof  to  his  own  use  and 
benefit,  and  make  no  remittance  for  the  said  produce,  or  any 

part  thereof,  and  that  the  said did  not  intend  to 

make  remittance  for  the  said  produce,  or  any  part  thereof,  or  to 
pay  for  the  same  at  any  time,  but,  as  aforesaid,  he  would  con- 
vert the  produce  and  the  proceeds  to  his  owti  use  and  benefit; 
and  in  pursuance  of  such  scheme  and  artifice,  and  to  effect  the 

object  thereof,  he,  the  said ,  on  the day  of 

within  the  jurisdiction  of  this  court,  to  wit.  with- 
in  etc.,  did  unlawfully,  knowingly,  fraudulently, 

and  feloniously  deposit  and  cause  to  be  deposited,  for  mailing 

and  delivery  in  the  United  States  Post-office  at ,   a 

certain    envelope,   duly    stamped   vn\h   two-cent   United   States 

postage  stamps,  and  addressed  to ,  and  which  said 

envelope,  so  deposited,  and  so  stamped  and  addressed,  contained 

the  following  letter,  to  wit : 

and  the  grand  jurors  aforesaid,  upon  their  oaths  aforesaid,  rep- 
resent and  show  to  the  court  that  the  said did  not 

intend  to  pay  the  prices  for  the  produce  in  said  letter  set  forth 
and  promised ;  that  he  was  not  financially  responsible  as  repre- 
sented in  said  letter ;  that  he  was  not  a  reputable  and  legitimate 
produce  dealer,  as  represented  in  said  letter,  but  intended,  as 
aforesaid,  to  appropriate  the  proceeds  of  the  produce  shipped  to 
him  in  response  thereto  to  his  own  use  and  benefit,  and  to  not  pay 
for  the  same,  or  any  part  thereof;  contrary'  to  the  form,  etc. 

Under  Section  206  of  the  New  Code,  False  Returns  to  Increase 
Compensation  of  Postmaster. 

one  John  Doe  was  postmaster  of  the  United  States 

Post-office  at  in  said  coimty  and  district,  the  same 

being  a  post-office  of  the  fourth  class ;  and  the  said 

so  being  such  postmaster,  as  aforesaid,  on  the  date  aforesaid,  and 
in  the  county  and  district  aforesaid,  did  imlawfully.  knowingly, 


432  FORM   OP  INDICTMENT 

and  fraudulently,  for  the  purpose  of  fraudulently  increasing 
his  compensation  as  such  postmaster,  under  the  Acts  of  Congress, 
make  a  certain  false  return  to  the  Auditor  of  the  Treasury  for 
the  Post-office  Department  of  the  United  States;  that  is  to  say, 
a  certain  false  return  of  the  amount  of  postage  stamps,  stamped 
envelopes,  postal-cards,  and  newspaper  and  periodical  stamps 
canceled  as  postages  on  matter  actually  mailed  at  the  said  post- 
office,  and  of  postage  due  stamps  canceled  in  payment  of  under- 
charges and  unpaid  postages  upon  matter  delivered  at  the  said 

post-office   during  the   quarter  ending  the day   of 

,  by  which  said  return  the  said  amoimt  appeared 

and  was  alleged  to  be dollars  and cents, 

which  said  return,  at  the  time  it  was  so  made,  as  aforesaid,  was 
false  in  this:  that  the  amount  of  postage  stamps,  stamped  en- 
velopes, postal  cards,  and  newspaper  and  periodical  stamps  can- 
celed as  postage  on  matter  actually  mailed  at  the  said  post-office, 
and  of  postage  due  stamps  canceled  in  payment  of  undercharges 
and  unpaid  postages  upon  matter  delivered  at  the  said  post-office 

during   the    quarter   aforesaid,   was   not dollars   and 

cents,  or  any  such  sum,  but  was  a  different  and  much 

smaller  sum,  to  wdt, dollars,  as  he,  the  said , 

at  the  time  of  making  the  said  return,  as  aforesaid,  then  and 
there  well  knew ;  all  of  which  was  contrary,  etc. 

Form  of  Indictment  Under  Section  125,   Old  Section  5392,   for 

Perjury. 

"The  United  States  of  America. 

"At  a  District  Court  of  the  United  States  of  America,  for  the 
District  of  Massachusetts,  begun  and  holden  at  Boston,  within 
and  for  said  district,  on  the  first  Tuesday  of  December  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  nine. 

"First  Count.  The  jurors  for  the  United  States  of  America, 
within  and  for  the  District  of  Massachusetts,  upon  their  oath, 
present  that  Frank  H.  Mason,  of  Boston,  in  said  district, 
at  the  several  times  of  the  committing  of  the  several  offenses  in 
this  indictment  hereafter  charged,  was  clerk  of  the  District 
Court  of  the  United  States  for  the  District  of  Massa<?husetts, 
and  as  such  clerk  w^as  by  law  required  to  make  to  the  Attorney 
General  of  the  United  States,  on  the  first  days  of  January  and 
July,  in  each  year,  and  in  the  form  prescribed  by  said  Attorney 


FOEM   OF   INDICTMENT  433 

General,  a  written  return  for  the  half  year  ending  on  said  days 
respectively,  showing,  among  other  things,  all  the  fees  and  emol- 
uments of  his  office,  of  every  name  and  character,  and  all  the 
necessary  expenses  of  his  office,  and  to  verify  such  return  by  his 
oath;  that  said  Frank  H.  Mason,  on  the  twenty-fourth  day  of 
September,  in  the  year  nineteen  hundred  and  eight,  at  Boston 
aforesaid,  then  so  being  such  clerk,  came  in  person  before  the 
Honorable  Frederic  Dodge,  then  and  before  that  time  judge  of 
the  District  Court  of  the  United  States  for  the  District  of  Mas- 
sachusetts, and  then  and  there  made  and  subscribed  a  certain 
declaration  and  certificate  in  writing  before  said  judge,  on  the 
occasion  of  his  making  his  return  as  aforesaid  as  such  clerk  for. 
the  half  year  ending  on  the  thirtieth  day  of  June,  in  the  year 
1908,  and  was,  on  the  day  first  aforesaid,  there  in  due  man- 
ner sworn  by  said  judge  touching  the  truth  of  the  matters 
contained  in  said  return,  and  took  his  corporal  oath,  before  said 
judge,  that  said  written  declaration  and  certificate  by  him  the 
said  Frank  H.  Mason  subscribed  was  then  just  and  true,  he  the 
said  Frederic  Dodge  as  such  judge  then  and  there  having  com- 
petent authority,  and  being  a  tribimal  and  officer  having  author- 
ity, to  administer  said  oath  and  take  said  written  declaration 
and  certificate;  and  that  said  Frank  H.  Mason  then  and  there 
falsely,  corruptly,  and  wilfully,  and  contrary  to  his  said  oath, 
did  in  and  by  his  said  written  declaration  and  certificate  declare 
and  certify  certain  material  matters,  among  other  things,  in 
substance  and  to  the  effect  that  said  return  was  in  all  respects 
just  and  true,  according  to  his  best  knowledge  and  belief,  and 
that  he  had  neither  received,  directly  or  indirectly,  any  other 
money  or  consideration  than  therein  stated;  that  the  total 
amount  of  fees  and  emoluments  received  in  bankruptcy  proceed- 
ings was  six  thousand  five  hundred  and  fifteen  dollars  and 
eighty -five  cents;  that  the  total  amount  of  fees  and  emoluments, 
not  in  bankruptcy  proceedings,  earned  from  parties  other  than 
the  United  States,  was  six  hundred  and  thirty-four  dollars  and 
eighty -three  cents;  and  that  the  balance  then  due  to  the  United 
States  from  him  as  such  clerk  was  four  thousand  and  nineteen 
dollars  and  forty-six  cents;  whereas  in  truth  and  in  fact  said 
Frank  H.  Mason,  at  the  time  he  took  said  oath  and  made  and 
subscribed  said  written  declaration  and  certificate,  had,  as  he 
then  well  knew,  received  as  such  clerk,  during  said  half  year, 
fees  and  emoluments  in  bankruptcy  proceedings  a  much  greater 
total  sum,  to  wit,  the  sum  of  six  thousand  six  hundred  and  sev- 
enty-four dollars  and  eighty-five  cents,  and  had  earned  fees  and 
emoluments,  not  in  bankruptcy  proceedings,  from  parties  other 
than  the  United  States,  a  much  greater  total  sum,  to  wit,  the 


^X 


434  FORM   OF  INDICTMENT 

sum  of  six  hundred  and  eighty-one  dollars  and  eighty-three 
cents,  and  the  balance  then  due  to  the  United  States  from  hira 
as  such  clerk  was  a  much  greater  sum,  to  Avit,  four  thousand 
two  hundred  and  twenty-five  dollars  and  forty-six  cents;  and 
whereas  in  truth  and  fact  said  Frank  H.  Mason  did  not  then  be- 
lieve it  to  be  true  that  the  total  amount  of  such  fees  and  emol- 
uments so  received  by  him  in  bankruptcy  proceedings  was  six 
thousand  five  hundred  and  fifteen  dollars  and  eighty-five  cents, 
or  that  the  total  amount  of  fees  and  emoluments  so  earned  by 
him,  not  in  bankruptcy  proceedings  and  from  parties  other  than 
the  United  States,  was  six  hundred  and  thirty-four  dollars  and 
eighty-three  cents,  or  that  such  balance  then  due  to  the  United 
States  was  four  thousand  and  nineteen  dollars  and  forty-six 
cents;  and  so  said  Frank  H.  Mason,  at  the  time  and  place,  and 
in  the  manner  and  form  aforesaid,  unlawfully  did  commit  wilful 
and  corrupt  perjury. 

Under  Section  125  of  the  New  Code,  Old  Section  5392,  for  Perjury. 

that  heretofore,  to  wit,  on  the   day  of 

,  in  the  year ,  there  came  on  to  be  tried  in  the 

District  aforesaid,  and  in  the  United  States  District  Court,  be- 
fore the  Honorable ,  judge  thereof,  and  a  jury 

duly  empaneled  and  sworn  for  that  purpose,  a  certain  issue  duly 
joined   between   the   said   United   States   of  America   and   one 

,  upon  a  criminal  indictment  duly  returned  and 

then  pending  in  said  court  against  the  said for  hav- 
ing unlawfull}^  engaged  in  the  business  of  a  retail  liquor  dealer 
without  first  having  paid  the  special  tax  therefor,  as  required  by 
the  United  States  statutes;  and  at  and  upon  a  trial  of  the  said 
issue  in  the  said  court,  before  the  said  judge  and  jury,  to  wit, 

on  the day  of in  the  same  said  year  of 

,  and  within  the  city  and  district  aforesaid,  and  State 

aforesaid,  one  John  Jones  appeared  and  was  produced  as  a  wit- 
ness for  and  on  behalf  of  the  said  defendant,  the  said , 

in  the  said  indictment,  and  was  then  and  there  duly  sworn,  and 
took  his  oath  as  such  witness  before  the  said  court,  that  the  evi- 
dence which  he,  the  said  John  Jones,  should  give  on  the  said 
trial  should  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  the  said  court  then  and  there  having  had  competent  au- 
thority to  administer  the  said  oath  to  the  said  John  Jones  in 


FORM   OF  INDICTMENT  435 

that  behalf;  and  the  said  John  Jones,  so  being  sworn,  as  afore- 
said, in  the  cause  aforesaid,  in  and  by  the  court  aforesaid,  it 
then  and  there,  upon  the  said  trial  of  the  said  issue,  became  and 

was  a  material  inquiry  whether and  whether 

;  and  the  grand  jurors  show,  upon  their  oaths  afore- 
said, that  the  said  John  Jones,  so  being  sworn  and  so  having 

taken  his  oath  as  aforesaid,  on  the  said day  of 

,   in   the  said  year   of ,   and  within   the   said 

county,  division,  district,  and  state  aforesaid,  upon  the  said  trial 
of  the  said  issue,  as  aforesaid,  wilfully  and  corruptly,  and  con- 
trary to  his  said  oath,  did  swear  and  depose  before  the  said 
court  and  jury,  amongst  other  things,  in  substance  and  to  the 

effect  following ;  that  is  to  say,  that and  that ; 

whereas,  in  fact  it  was  not,  and  is  not,  true,  that.  .  .  ; and 

that ;  and  at  the  time  of  so  swearing  and  deposing, 

the  said  John  Jones  did  not  believe  it  to  be  true  that 

and  that ;  and  the  grand  jurors  aforesaid,  upon  their 

oaths  aforesaid,  do  say  that  the  said  John  Jones,  in  the  manner 
and  form  aforesaid,  having  taken  an  oath  before  a  competent 
tribunal  aforesaid,  in  a  case  wherein  a  law  of  the  said  United 
States  authorized  an  oath  to  be  administered  that  he  would 
truly  depose  and  testify,  wilfully,  and  contrary  to  his  said 
oath,  did  depose  and  state  material  matters  which  he  did  not  then 
believe  to  be  true,  and  thereby  did  commit  wilful  and  corrupt 
perjury;  contrary,  etc. 

For  Making  and  Forging  and  Counterfeiting  National  Bank  Notes, 
New  Section  149,  Old  Section  5414. 

one with  intent  to  defraud  certain  per- 
sons to  the  grand  jurors  unknown,  did  unlawfully,  feloniously, 
and  fraudulently  falsely  make,  forge,  and  counterfeit  ten  notes, 
in  imitation  of,  and  purporting  to  be,  circulating  notes  of  the 
national  bank  currency  of  the  United  States,  to  wit,  the  circu- 
lating  notes   of   the banking   association,    each    of 

which  said  falsely  made,  forged,  and  counterfeited  notes  was  in 
this  tenor,  as  follows,  to  wit:  (Here  set  out  fully,  or  as  nearly 
completely  as  possible)  ;  and  the  said  counterfeited,  falsely  made. 


436  FORM   OF  INDICTMENT 

and  forged  circulating  notes,  as  aforesaid,  were  so  falsely  made, 
forged,  and  counterfeited  for  the  purpose  of  defrauding  certain 
persons,  to  the  grand  jurors  unknown ;  contrary,  etc. 

For  Passing  or  Attempting  to  Pass  Counterfeit  Notes  of  National 
Banking  Associations. 

did  unlawfully,  knowingly,  fraudulently,  and  felon- 
iously pass,  utter,  and  publish,  and  attempt  to  pass,  utter,  and 
publish  as  true  and  genuine,  a  certain  falsely  made,  forged,  and 

counterfeited  note,  purporting  to  be  issued  by  the 

bank  of ,  a  banking  association  which  had  there- 
tofore been  authorized,  and  was  acting  under  the  laws  of  the 
United  States  of  America,  upon  and  to  John  Jones,  with  the  in- 
tent and  purpose  of  him,  the  said of  defrauding 

the  said  John  Jones,  the  tenor  of  which  said  false,  forged,  and 
counterfeit  note  is  as  follows,  to  wit;  that  is  to  say,   (here  set 

out  the  note)  he,  the  said at  the  time  of  so  passing, 

uttering,  and  publishing,  and  attempting  to  pass,  utter,  and  pub- 
lish the  aforementioned  falsely  made,  forged,  and  counterfeited 
note,  upon  and  to  the  said  John  Jones,  then  and  there  well  knew 
that  the  same  said  falsely  made,  forged,  and  counterfeited  note 
was  falsel.y  made,  forged,  and  eoimterfeited,  and  then  and 
thereby  intended  to  defraud  the  said  John  Jones;  contrary,  etc. 

Under  Section  163  of  the  New  Code,  Old  Section  5457,  for  Counter- 
feiting Coins. 

did  then  and  there  knowingly,  wrongfully,  unlaw- 
fully, fraudulently,  and  feloniously  falsely  make,  forge,  and 
counterfeit,  and  cause  and  procure  to  be  falsely  made,  forged, 
and  counterfeited,  and  willingly  aided  and  assisted  in  falsely 
making,  forging,  and  counterfeiting,  five  himdred  certain  false, 
forged,  and  counterfeit  coins,  each  of  which  said  false,  forged, 
and  counterfeit  coins  was  then  and  there  in  the  resemblance  and 
similitude  of  the  silver  coins  which  had  theretofore  been  coined 
at  the  mints  of  the  United  States,  and  called  silver  dollars,  and 
he.  the  said  John  Doe,  then  and  there  knowing  the  said  false. 


FORM   OF   INDICTMENT  437 

forged,  and  counterfeit  coins  to  be  then  and  there  false,  forged, 
and  counterfeited,  with  the  intent  of  him,  the  said  John  Doe, 
then  and  there  to  defraud  certain  persons  to  the  grand  jurors 
unknown ;  contrary,  etc. 

For  Passing,  Etc.,  Counterfeit  Coins,  Section  163  of  the  New  Code, 
Old  Section  5457. 

And  the   grand  jurors  aforesaid,   upon  their  oaths 

aforesaid,  do  further  present  into  open  Court,  that  heretofore,  to 

wit,  on  the day  of ,  A.  D ,  one 

Jolm  Doe,  within  the Division  of  the 

District  of did  then  and  there  knowingly,  wrong- 
fully, feloniously,  and  fraudulently,  have  in  his  possession  five 
hundred  certain  false,  forged,  and  counterfeited  coins,  each  of 
which  said  false,  forged,  and  counterfeited  coins  was  then  and 
there  in  the  resemblance  and  similitude  of  the  silver  coins  which 
had  theretofore  been  coined  at  the  mints  of  the  United  States 
and  called  silver  dollars,  he,  the  said  John  Doe,  then  and  there 
knowing  the  said  false,  forged,  and  coimterfeited  coins  to  be 
then  and  there  false,  forged,  and  counterfeited,  did  then  and 
there  knowingly,  wrongfully,  unlawfully,  and  fraudulently  pass, 
utter,  and  publish  one  of  the  said  false,  forged,  and  counter- 
feited coins  upon  and  to  one  John  Jones,  with  the  intent  of  him, 
the  said  John  Doe,  to  defraud  the  said  John  Jones,  he,  the  said 
John  Doe,  then  and  there  knowing  the  said  coin  so  passed  upon 
the  said  John  Jones  to  be  false,  forged,  and  counterfeited,  as 
aforesaid;  contrary,  etc. 

For  Keceipting  for  Larger  Sums  Than  Are  Paid,  New  Section  86, 

Old  Section  5483. 

(Approved  in  U.  S.  vs.  Mayers,  81  Fed.,  159.) 

"The  jurors  of  the  United  States  of  America  within  and  for 
the  district  and  circuit  aforesaid,  on  their  oaths  present  that  Gr. 
F.  Mayers,  late  of  Frederick  County,  in  the  district  aforesaid,  at 

said  county,  heretofore,  to  wit,  on  the day  of , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety- 


438  FORM  OF  INDICTMENT 

two,  at  the  said  Western  District  of  Virginia,  and  within  the 
jurisdiction  of  this  court,  the  said  G.  F.  Myers  being  then  and 
there  an  officer  of  the  United  States,  to  wit,  postmaster  at 
Stevens  City,  Virginia,  charged  with  the  payment  of  an  appro- 
priation made  by  an  Act  of  Congress,  to  wit,  an  appropriation 
for  the  payment  of  letter  carriers  at  experimental  free  delivery 
offices,  did  unlawfully  pay  to  an  employee  of  the  United  States, 
to  wit,  one  Douglas  K.  Drake,  and,  to  wit,  one  Edgar  C.  Cad- 
wallader,  who  were  then  and  there  employees  of  the  United 
States,  to  wit,  letter  carriers,  a  sum  less  than  that  provided  by 
law,  to  wit,  the  sum  of  $122.92,  and  required  said  employees  to 
give  vouchers  for  an  amoimt  greater  than  that  actually  paid  to 
and  received  by  them,  to  wit,  the  sum  of  $306.17,  against  the 
peace  of  the  said  United  States  and  their  dignity,  and  against 
the  form  of  the  statute  of  the  said  United  States  in  such  case 
made  and  provided." 


INDEX 


(Explanation:  The  first  figures  indicate  the  pages  and  the  letter 
'•'8"  before  a  figure  means  the  Section,  thus  414  S.  400  means  page  414, 
Section  400.) 

ASSAULT,  intent  to  commit,  murder,  rape,  etc.,  320,  S.  305 ;  326,  S.  318. 

ACCESSORIES,  407,  S.  403. 

AGENTS,  interested  persons  not  to  be,  230,  S.  187. 

ASSAULTING  OFFICER,  153,  S.  108. 

ARMS,  sale  of  forbidden,  340,  S.  399;  on  high  seas,  341,  S.  340;  embez- 
zlement of,  217,  S.  180. 

ADULTERY,  345,  S.  348. 

ARSON,  324,  S.  314  and  315. 

ADVERTISEMENT,  imitating  bank  bills,  134,  S.  88;  any  security  of  U. 
S.,  135,  S.  89. 

ARTICLES,  of  constitution,  36,  S.  20. 

ABATEMENT,  plea  of,  31,  S.  13. 

ACKNOWLEDGEMENT,  false,  209,  S.  175. 

ABORTION,  things  to  produce,  etc.,  78,  S.  53 ;  83,  S.  53. 

ADMISSIBILITY  OF  ILLEGALLY  SECURED  EVIDENCE,  41,  S.  21. 

ANIMAL  INDUSTRY,  interfering  with  employes,   241,   S.   206. 

BAIL,  32,  S.  14;  after  afiirmance,  56,  S.  36;  procuring  false,  152,  S.  107. 

BONDS,  32,  S.  15;  sufficiency  of,  33,  S.  15;  false,  152,  S.  107;  forgery  of 
200,  S.  172. 

BANKRUPTCY,  generally.  Section  29  of  the  Act;  380,  S.  381;  other 
offences,  381,  S.  381;  decisions,  382,  S.  382;  failure  to  pay  over  money, 
386,  S.  383. 

439 


440  INDEX 

BREAKING  INTO  AND  ENTERING  POST  OFFICE,  430. 

BILLS  OF  EXPIRED  CORPORATION,  133,  S.  86;  less  than  dollar,  153, 
S.  90. 

BODY,  of  executed,  406,  S.  401. 

BRIBE,  accepting,  168,  S.  122;  witness  and  others,  169,  S.  123-124;  mem- 
bers of  Congress,  170,  S.  12.5;  184,  S.  153;  185,  S.  154-155;  U.  S. 
officer  accepting,  191,  S.   160;   revenue  officer,  244,  S.  211. 

BRIBERY,  42],  Judge  or  Judicial  officer,  168,  S.  121;  others,  169,  S.  123; 
member  of  Congress,  184,  S.  153;  185,  S.  154-155;  of  U.  S.  officer, 
227,  S.  185. 

BANKERS,  receiving  of  public  money,  embezzlement,  179,  S.  139,  see 
National  Banks. 

CITIZENSHIP,  forgery  of  certificate,  248,  S.  216;  plates  for  engraving, 
248,  S.  217;  false  personation  in  securing,  249,  S.  218;  urging  false 
certificate,  denying,  etc.,  250,  S.  219;  right  to  vote  on  false,  251,  S. 
220;  falsely  claiming,  252,  S.  221;  false  oath  in,  253,  S.  222;  all  courts, 
254,  S.  223. 

CORPORATIONS,  political  contributions  by,   254,  S.   224. 

COMMENT  BY  COURT,  51,  S.  29. 

CRIMES,  jurisdiction,  state  and  federal  courts,  623,  S.  43. 

COMMON  CARRIER,  not  to  collect  price  of  liquors,  293,  S.  265;  obscene 
books,  etc.,  297,  S.  291. 

C.  O.  D.,  liquor,  293,  S.  265;  decisions  353,  S.  360. 

CESSION,  of  territory,  311,  S.  300;   326  and  327. 

CONSPIRACY  TO  VIOLATE  LOTTERY  STATUTE,  412;  to  endanger 
citizens  in  exercise  civil  rights,  414;  to  plunder  vessel,  418;  to  intimi- 
date party,  witness  or  juror,  164,  S.  113;  to  commit  an  offence  against 
U.  S.,  219,  S.  181;  also  S.  182-183;  illustrative  cases,  222,  S.  184; 
seditious,  259,  S.  231;  to  deprive  of  civil  rights,  274,  S.  247;  to  pre- 
vent holding  office  or  doing  duty,  285,  252 ;  to  cast  away  vessel,  335,  S. 
327 ;  to  conceal  bankrupt  assets,  383 ;  against  U.  S.  429. 

CONCEALING  PRISONER,  166,  S.  116. 

CONGRESS,  briber  of  member,  170,  S.  125;  184,  S.  153;  185,  S.  154  and 
155;  taking  compensation  U.  S.  party,  189  S.  153;  member  not  to  be 
interested  in  contract,  189,  S.  157;  officer  making  contract  with  mem- 
ber, 190,  S.  159. 


INDEX  441 

CONTRACTING,  beyond  specifications,  180,  S.  141. 

CROP  REPORTS,  information,  196,  S.  167 ;  statistics,  196,  S.  168. 

COUNTERFEITING,  money  order,  112,  S.  70;  postage  stamps,  115,  S.  71; 
obligation,  etc.,  of  U.  S.,  123,  S.  77;  cases,  125,  S.  78;  other  cases  as 
to  obligation,  125,  S.  79;  U.  S.  Securities,  126,  S.  80;  securities  and 
bank  notes,  128,  S.  81;  Confederate  money,  129,  S.  82;  state  bank 
notes,  130,  S.  83;  knowledge,  132,  S.  84;  description,  132,  S.  85;  ex- 
pired corporation,  133,  S.  86 ;  defacing  national  bank  notes,  133,  S. 
87 ;  defacing  national  bank  notes,  134,  S.  88 ;  imitating  any  U.  S. 
security,  or  making  cards,  135,  S.  89 ;  bills  less  than  dollar,  135,  S.  90 ; 
gold,  silver  coins  or  bars,  136,  S.  91;  resemblance  or  similitude,  137,  S. 
92;  making  and  passing  coins,  139,  S.  94;  minor  coins,  140,  S.  95; 
other  statutes,  141  S.  96;  forfeiture  of  counterfeits,  141,  S.  97;  search- 
warrant,  142,  S.  98;  Weather  Bureau  forecasts,  197,  S.  169;  241,  S. 
205;  certificates  of  citizenship,  248,  S.  216  and  217;  national  bank 
notes,  435;  passing  same,  436;  coins,  436;  passing  same  437. 

CIVIL  RIGHTS,  conspiracy  to  deprive,  etc.,  274,  S.  247;  right  to  labor, 
278,  S.  248;  illustrations,  279,  S.  249;  voting,  282,  S.  282;  other 
crimes  committed  at  same  time,  284,  S.  250;  depriving  under  color 
State  law,   284,   S.   251;   slave  trade,  peonage,  298. 

CONFEDERATE  MONEY,  127,  S.  82. 

COINS,  counterfeiting,  136,  S.  91;  making  and  uttering,  139,  S.  94;  minor, 
140,  S.  95. 

CLAIM,  false,  212,  S.  178  and  179. 

COHABITATION,  unlawful,  344,  S.  345. 

CHECKS,  falsely  certifying,  368,  S.  372. 

CORRUPTION  OF  BLOOD,  no  conviction  to  work,  399,  S.  394. 

CONSTITUTION,  Federal,  21. 

CRIMINAL  LAW,  source  of,  22,  S.  23. 

CONSTITUTIONAL  GUARANTEES,  22-23-24,  S.  4;  civil  rights,  274, 
S.  247;  slave,  peonage,  etc.,  298,  S.  272;  v04,  S.  398. 

CRIMES,  infamous,  24,  S.  5. 

CONTEMPTS,  30,  S.  11. 

COMMISSIONERS,  U.  S.,  29,  S.  11. 


442  INDEX 

CHALLENGES,  33,  S.  16. 

CONFESSIONS,  36,  S.  20;  test,  31-41. 

CHAEGE,  of  court,  care  in  expressing  opinion,  45,  S.  24 ;  good  character, 
49,  S.  26;  form  of,  49,  S.  27;  opinion  of  court,  50,  S.  28;  51,  S.  29. 

DECOY  LETTERS,  71,  S.  51. 

DUPLICITY,  36,  S.  19. 

DOCUMENTARY  EVIDENCE,  41,  S.  21. 

DISTRICT  ATTORNEY,  argument  of,  improper  comments,  42,  S.  22; 
grand  jury  room  limits,  44,  S.  23. 

DESERTIONS,  enticing,  230,  S.  188. 

DYNAMITE,  287,  S.  258. 

DEATH,  by  explosives,  290,  S.  262;  murder,  315,  S.  30;  by  misconduct 
officers,  owners,  etc.,  of  vessel,  323,  S.  311;  by  hanging,  punishment, 
399,  S.  393. 

EXCLUSIVE  JURISDICTION,  of  Federal  Courts,  404,  S.  397;  other  de- 
cisions, 404,  S.  398. 

EXTORTION,  by  Internal  Revenue  Agent,  etc.,  167,  S.  118;  generally,  172 
S,  126;  by  Federal  employe,  173,  S.  127. 

EMBEZZLEMENT,  postal  funds  and  property,  117,  S.  72;  rural  carriers, 
120,  S.  73;  different  sorts,  176,  S.  129  and  S.  130-131;  also  177,  S. 
132-134;  application  of  sections,  178,  S.  135;  record  evidence  of,  178, 
S.  136;  prima  facie  evidence,  178,  S.  137  and  138;  by  Banker  of  Gov- 
ernment funds,  179,  S.  139;  by  Internal  Revenue  Officers,  179,  S.  140; 
by  officer  of  court,  180,  S.  142;  by  lending,  181,  S.  143;  of  stores, 
arms,  etc.,  217,  S.  180;  any  property,  232,  S.  193;  bank,  national,  371, 
S.  375. 

EMPLOYE  OF  POST  OFFICE  DEPARTMENT,  who  is,  122,  S.  76. 

ELECTION,  interference  by  Army  or  Navy,  285  and  286. 

EXPLOSIVES,  287,  S.  258;  289,  S.  260;  marking  of  packages,  289,  S.  261. 

ENTICING  DESERTIONS,  230,  S.   188;   workmen,  231,  S.   189. 

EXTRADITION,  331,  S.  322. 


INDEX  443 

EVIDENCE,  self,  25,  S.  7;  documents,  41,  S.  21;  of  conviction,  60,  S.  42; 
see  (locimientary ;  secured  illegally,  41,  S.  21;  good  character,  48,  S.  26; 
of  embezzlement,   178,   S.   136-138. 

ENLISTING  SOLDIEES,  against  U.  S..  260,  S.  233;  in  foreign  service, 
262,  S.  236. 

ESCAPE,  allowing  prisoner,   166,   S.   115. 

FOETS,  fortifications,  injuries  to,  etc.,   231,  S.   190. 

FOREIGN  GOVEENMENTS,  correspondence  with,  259,  S.  230:  vessels  to 
depart,  270,  S.  242. 

FOOD  AND  DRUGS  ACT,  387,  S.  384;  criminal  sections,  387,  S.  385;  de- 
cisions, 388,  S.  386;  opium,  importations  of,  391,  S.  387. 

FALSE  CERTIFYING  CHECKS,  426. 

FRAUDULENT  USE,  MAILS,  437. 

FALSE  EETUENS,  to  increase  compensation  of  Post-Master,  107,  S.  64. 

FORNICATION,  345,  S.  350. 

FORFEITURE,  OF  COUNTERFEITS,  141,  S.  97. 

FORGERY,  money  order,  112,  S.  70;  signature  of  Judge,  etc.,  160,  S.  Ill; 
Letters  Patent,  200,  S.  171;  bond,  bid,  record,  etc.,  200,  S,  172;  of 
writing  to  defraud  U.  S.,  200,  S.  172;  deeds,  powers  of  attorney  and 
other  papers  to  receive  money,  etc.,  from  U.  S.,  204,  S.  173;  having 
paper  in  possession,  208,  S.  174;  certificate  of  entry,  241,  S.  207;  certifi- 
cate of  citizenship,  248,  S.  216. 

FALSE  RETURNS,  by  Post-Master,  107.  S.  64;  civil  remedy,  108,  S.  65. 

FRAUDULENT  USE,  MAILS,  89,  S.  55;  elements  of,  90,  S.  55;  threaten- 
ing letter,  91,  S.  55;  ordering  goods,  no  intent  to  pay,  92,  S.  55;  in- 
dictments, 92,  S.  55;  punishment,  98,  S.  58;  land  assessments,  104,  S. 
60;  issuing  stock,  105,  S.  61. 

FICTITIOUS  NAME,  97,  S.  57. 

FILTHY  MATTER.  ETC.,  79,  S.  53. 

FRAUD  ORDER,  97,  S.  56. 

FEES,  witness,  purchase  of,  by  officers,  182,  S.  147 ;  steamboat  inspector, 
183,  S.  150;  pension  agent,  183,  S.  151. 


444  INDEX 

FALSE  CERTIFICATE,  to  deeds,  etc.,  182,  S.  148-149;  false  demand  for 
power  of  attorney.  212.  S.  178;  false  claim,  212,  S.  179;  of  entry,  241, 
S.  207;  of  Consular  officer,  247,  S.  214;  marriage,  346,  S.  3,51. 

FELONY,  misprision,  168,  S.   119;  generally,  407,  S.  404. 

FEDERAL  TERRITORY,  310,  S.  299;  defined,  311,  S.  300. 

FORMS  OF  INDICTMENT,  embezzlement,  409;  loss  of  life  on  vessel  by 
negligence  of  officers,  410;  conspiracy  to  violate  lottery  statute,  412; 
conspiracy  to  endanger  citizen,  etc.,  in  exercise  of  civil  rights,  414; 
peonage,  414 ;  returning  to  peonage,  41.5 ;  polygamy,  416 ;  illlegal  re- 
tail liquor  dealer,  416;  selling,  etc.,  oleomargarine,  417;  conspiring  to 
plunder,  etc.,  vessel,  418;  false  claim,  419;  bribery,  421;  larceny,  421; 
false  registration,  422;  subordination,  of  perjury,  422;  false  oath  in 
naturalization,  424 ;  murder,  425 ;  false  certifying  checks,  426 ;  em- 
bezzlement by  bank  officer,  427 ;  impersonating  U.  S.  officer,  427 ;  gen- 
eral form,  beginning  and  ending,  428 ;  conspiracy  against  U.  S.  429 ; 
mailing  obscene  matter,  429;  breaking  into  and  entering  Post  Office, 
430;  fraudulent  use  of  mails,  430;  false  returns  to  increase  compen- 
sation of  Post-Master,  431;  perjury,  432  and  434;  counterfeiting 
national  bank  notes,  435;  passing  counterfeit  notes,  436;  counterfeiting 
coins,  430;  passing  counterfeit  coins,  437;  receipting  for  larger  sums 
than  paid,  437. 

FIGHTS,  prize  and  bull,  347,  S.  352;   defined,  347,  S.  3.53. 

GOOD  CHARACTER,  48,  S.  26;  51,  S.  29;  52,  S.  30. 

GRAND  JURY,  30,  S.  13;  improper  person  before,  etc.,  44,  S.  23;   59,  S. 

40;   intimidation   of,   161,   S.    112;    attempt   to   influence,   165,   S,   114; 

bribery  of,  169,  S.   123. 

GOVERNMENT,  operation  of,  offence,  against,  199,  S.  170;  our  system, 
273,  S.  246. 

GAME,  illegal  transportation   of;   marking,   etc.,   195  and  296. 

HARD  LABOR,  407,  S.  405. 

HANGING,  punishment,  399,  S.  393. 

HABEAS  CORPUS,  22,  S.  4;   return,  58,  S.  38. 

INSTRUCTIONS  OF  THE  COURT,  form  of,  49,  S.  27;  case  to  jury, 
52,  S.  30. 

INDICTMENT,  30  and  31,  S.  13;  remission,  31,  S.  13;  copy  of,  31,  S.  13; 
return  of,  34,  S.  17;  endorsement  and  signature,  34,  S.  17;  consolidation, 
35,  S.  18;  duplicity,  36,  S.  19. 


INDEX  445 

INFOEMATION,  remission  of,  31,  S.  13;  crop  reports,  196,  S.  167;  sta- 
tistics, 196,  S.  168. 

IMMORAL  USE,  women  and  girls,  392,  S.  388. 

IMPORTING  CONTRACT  LABOR,  394,  S.  390. 

INCEST,  345,  S.  349. 

INTERNAL  REVENUE,  generally,  349,  £.  355;  no  trade  to  be  carried  on 
until  tax  paid,  350,  S.  356;  partnership,  351,  S.  357;  must  exhibit 
stamp,  351,  S.  358;  rectifiers,  dealers,  etc.,  to  pay  tax,  352,  S.  359; 
C.  O.  D.  cases,  353,  S.  360;  fact  cases,  354,  S.  361;  proof  of  license, 
355,  S.  362 ;  distillers,  fraud,  355,  S.  363 ;  breaking  locks,  etc.,  356,  S. 
364;  signs,  etc.,  357,  S.  365;  books,  etc.,  357,  S.  366;  effacement  of 
stamps,  359,  S.  367;  re-use  of  bottles,  etc.,  360,  S.  368;  shipping  under 
other  name,  360,  S.  369;   oleomargarine,  361,  S.  370. 

INTIMIDATION,  of  witness,  juror,  or  officer,  161.  S.  112;  conspiracy  to, 
party,  witness  or  juror,  164,  S.  113. 

INJURY,  by  explosives,  29,  S.  262. 

INTERSTATE  COMMERCE;  dynamite,  etc.,  287,  S.  258:  lottery  tickets, 
290,  S.  263;   obscene  books,  etc.,  297,  S.  271;  game,  etc..  295-296. 

INTERSTATE  COMMERCE  COMMISSION,  to  make  regulations  for 
transportation  of  explosives,  288,  S.  259;  liquors,  293,  S.  264;  birds, 
reptiles,  etc.,  295,  S.  267  and  268;  packages  to  be  marked,  296,  S.  269; 
penalty,  296,  S.  270. 

IMPERSONATING,  United  States  Officer,  209,  S.  176;  Revenue  Officer, 
242,  S.  210;   to  get  citizenship,  249,  S.  218. 

INSPECTOR,  steamboat,  illegal  fees.  13,  S.  150. 

INTOXICATING  LIQUORS,  Interstate  shipment  of  and  delivery  to  bona 
fide  consignor,  293,  S.  264;  common  carrier  not  to  collect  purchase 
price,  293,  S.  265;  to  be  marked,  294,  S.  266;  sale  of  in  Pacific  Is- 
lands,  340,   S.   339 ;    see  Internal   Revenue. 

INVOICES,  customs,  242,  S.  208. 

IMMUNITY,  26,  S.  7;  58,  S.  39;  from  political  contributions,  194,  S.  163. 

JEOPARDY,  24,  S.  6. 


446  INDEX 

JUEOES,  Ust  not  furnished,  32,  S.  13;  challenge,  33,  S.  16;  disability  of, 
34,  S.  16;  impeachment  of  verdict  by,  34,  S.  16;  intimidation  of,  161, 
S.  112;  attempt  to  influence,  165,  S.  114;  bribing,  169,  S.  123. 

JUEY,  trial  by,  right  of,  45,  S.  24;  waiver  of,  46,  S.  24;  care  of,  47,  S.  25. 

KIDNAPPING,  307,  S.  209 ;  engaging  in,  U.  S.,  309,  S.  298. 

LAECENY,  232,  S.  192;  232,  S.  193;  325,  S.  316. 

LOAN,  receiving  public  money,  embezzlement,  181,  S.  143. 

LITEEATUEE,  obscene,  trading  in,  etc.,  181,  S.  145;  in  territories,  343, 
S.   343. 

LETTEES,  test,  or  decoy,  71,  S.  51;   threatening,  91,  S.   55. 

LIBELLOUS,   ETC.,   MATTEE,   84,   S.   54. 

LAND  SCHEMES,  98,  S.  58;   104,  S.  60. 

LOTTEEY,  98,  S.  58;  102,  S.  59;  post-masters  not  to  be  agents,  160,  S.  63; 
importation  and  transportation  of  tickets,  290,  S.  263. 

LETTEES  PATENT,  forgery  of.  200,  S.  171. 

LABOE,  right  to,  278,  S.  248 ;  importing  contract,  394,  S.  390. 

MEECHANDISE,  admitting,  less  duty,  245,  S.  212;  entry  by  false  samples, 
246,  S.  213;  false  certificate,  consul,  247,  S.  214. 

MANSLAUGHTEE,  319,  S.  303;  punishment,  320,  S.  304;  attempting  to 
commit,  321,   S.   306. 

MAIMING,  324,  S.  312. 

MUTINY,   331-334. 

MAEEIAGE,  recording  certificate  of,  346,  S.  351. 

MILITAEY,  enticing  desertions,  230,  S.  188;  injuries  to  forts,  etc.,  231,  S. 
190;   entering  reservation,  213,  S.  191. 

MISDEMEANOES,  407,  S.  404. 

MISPEISION,  of  felony,   168,  S.   119;   of  treason,  258,  S.  228. 

MUEDEE,  315,  S.  301;  verdict  in,  318,  S.  303;  punishment,  320,  S.  304; 
assault  with  intent,  320,  S.  305;  attempt,  321,  S.  306. 

MONEY  OEDEE,  issuing  without  pay,  112,  S.  69;  forging,  etc.,  112,  S.  70. 


INDEX  447 

NATIONAL  BANKS,  counterfeiting  notes  of,  128,  S.  81;  defacing  notes 
of,  133,  S.  87;  imitating  notes  of  with  defacement,  134,  S.  88;  general 
provisions  concerning,  367,  S.  371 ;  false  certifying  checks,  368,  S.  372 ; 
wilfully,  369,  S.  373;  acting  by  others,  371,  S.  374;  embezzlement, 
abstraction,  misapplication,  false  entries,  etc.,  371,  S.  375;  abstraction, 
373,  S.  376;  misapplication,  374,  S.  377;  false  entries,  374,  S.  378; 
illustrative  cases,  377,  S.  379. 

NAVY,  enticing  desertions,  230,  S.  188. 

NEUTRALITY,  261,  S.   234;   accepting  foreign  commission,   262,  S.   235; 
enlisting  in  foreign  service,   252,  S.   236;   burning  vessel,  etc.,  263,  S. 
237;  forfeiture  of  vessel,  etc.,  265,  S.  238;  augmenting  force  of  foreign 
vessel,  266,  S.  239;   against  people  at  peace  with  U.  S.,  266,  S.  240 
statute  generally,  269,  S.  241 ;  foreign  vessels  to  depart,  270,  S.  242 
vessels  to  give  bond,  270,  S.  243;   detention  by  collector,  241,  S.  244 
construction  of  chapter,  272,  S.  245. 

NATURALIZATION,  false  oath  in,  253,  S.  222;  provisions  applicable  to 
all  courts,  254,  S.  223. 

OFFENCES,  against  both  State  and  Nation,  24.  S.  6;  dual  system,  273,  S. 
236;  Federal  territory,  311,  S.  300. 

OLEOMARGARINE,  361,  S.  370;   417. 

OPIUM,  importation  of,  391,  S.  387. 

OBSTRUCTING  process,  153,  S.  108 ;  revenue  officer,  242,  S.  209. 

OBSCENE,  etc.,  MATTER,  non-mailable,  78,  S.  53;  trading  in,  181,  S.  145; 
with  common  carrier,  297,  S.  271 ;  in  territories,  343,  S.  343. 

OFFICER,  assaulting,  etc.,  153,  S.  108;  obstructing,  153,  S.  108;  not  to 
be  interested  in  claims  against  U.  S.,  183,  S.  152;  accepting  bribe, 
191,  S.  160;  not  to  solicit  political  contributions,  193,  S.  161;  imper- 
sonating, 209,  S.  176;  bribery  of,  227,  S.  185;  resisting  revenue,  242, 
S.  209. 

OPINION  OF  COURT,  50,  S.  28;  51,  S.  29. 

PENALTY,  remission  of,  56,  S.  35. 

PRIVATE  PROSECUTORS,  59,  S.  42. 

POSTAL  OFFENCES,  generally,  62,  S.  43 ;  State  and  Federal  Courts,  62, 
S.  43;  63,  S.  44;  breaking,  etc.,  post-office,  63,  S.  45;  entering  car,  65,  S. 
46;  interfering  postal  clerk,  65,  S.  46;  assaulting  carrier,  robbing  mail. 


448  INDEX 

injuring  letter  boxes  or  mail  matter,  66,  S.  47;  obstructing  mail,  67, 
S.  48 ;  firemen  delaying  mail,  69,  S.  49 ;  Post-Master  or  other  employe 
detaining  or  destroying  newspapers,  69,  S.  50 ;  special  delivery,  70,  S. 
50;  Post-Master  or  other  employe,  detaining,  etc.,  70,  S.  51;  stealing, 
secreting  or  embezzling  mail,  74,  S.  52 ;  Government  control  over  mail 
ceases  when,  75,  S.  52 ;  obscene,  etc.,  matter,  78,  S.  53 ;  postmark,  evi- 
dence, 84,  S.  53 ;  libellous  wrappers,  etc.,  84,  S.  54 ;  duns  on  postal 
cards,  84,  S.  54 ;  fraudulent  use  mails,  89,  S.  55 ;  threatening  letter,  91, 
S.  55 ;  ordering  goods,  etc.,  no  intent  to  pay,  92,  S.  55 ;  lottery,  etc.,  98, 
S.  58  and  102,  S.  59;  issuing  stock,  105,  S.  61;  sample  cases,  106,  S. 
62;  false  returns  of  Post-Master,  107,  S.  64;  collection  unlawful  post- 
age, 109,  S.  66;  pledge  or  sale  of  stamps,  109,  S.  67;  failure  to  account 
for  postage  and  to  cancel  stamps.  111,  S.  68;  issue  money  order  without 
pay,  112,  S.  69;  forging  money  order,  112,  S.  70;  counterfeiting  postage 
stamps,  115,  S.  71;  funds,  misapplication  by  use,  etc.,  117,  S.  72; 
rural  carriers,  embezzlements  by,  etc.,  120,  S.  73 ;  theft  post-office  prop- 
erty, 121,  S.  74;  other  offences,  121,  S.  75;  definitions  of  employe, 
122,  S.  76. 

POST-MASTERS,  not  to  be  lottery  agents,  106,  S.  63. 

PURE  FOOD,  387. 

POSTAL  CARDS,  duns,  etc.,  88,  S.  54. 

POST-MARK,  evidence,  84,  S.  53. 

PUBLIC  LANDS,  timber  on,  235,  S.  195;  boxing,  etc.,  timber  on,  238,  S. 
197;  fire,  239,  S.  198;  breaking  fences,  etc.,  239,  S.  200;  posts  and 
monuments  on,  240,  S.  201;  preventing  survey,  etc.,  of,  240,  S.  202; 
bids  at  sale  of,  240,  S.  203. 

POSTS  AND  MONUMENTS,  on  public  land,  removal  of,  240,  S.  201. 

PEONAGE,  generally,  298;  307,  S.  296;  offers  to  obstruct  enforcement  of 
the  statute,  309,  S.  297. 

PRISONER,  allowing  to  escape,  166,  S.  115;  rescue  and  concealing  of,  166, 
S.  116. 

PILLORY,  abolished,  399,  S.  395. 

PARDON,  406,  S.  399. 

PRINCIPALS,  407,  S.  402. 

PAROLE,  of  prisoner,  408,  S.  407. 


INDEX  449 

PUBLICITY,  of  political  contributious,  408,  S.  409. 
POOR,  witnesses  for,  408,  S.  408. 
PUBLIC  FUNDS,  trading  in,  182,  S.   146. 
PENSION  AGENT,  illegal  fees,  183,  S.  151. 

POLITICAL  CONTRIBUTIONS,  not  solicit.  39.3.  S.  161;  received  in  pub- 
lie  office,  194,  S.  162;  immunity  from,  194,  S.  163;  giving,  194,  S.  164; 
penalty,  194,  S.  165;  by  corporations,  254,  S.  224. 

PERSONATION  OF  HOLDER  OF  PUBLIC  STORES,  212,  S.  177. 

PERJURY,  statute,  144.  S.  99;  oath,  145,  S.  100;  tribunal,  etc.,  145,  S. 
101;  examples.  147,  S.  102;  materiality  and  Milfulness,  149,  S.  103; 
sufficiency  of  indictment.  149,  S.  104;  proof,  151,  S.  105;  subornation 
of,  151,  S.  106;  false  oath  in  naturalization,  253,  S.  222.      • 

PUBLIC  RECORDS,  destroying,  stealing,  etc.,  157,  S.  109;  by  officer  in 
charge,  159,  S.  110. 

PAPERS,  unlawful  taking  of,  229,  S.  186. 

POLYGAMY,  343,  S.  344 ;  decisions.  344,  S.  347. 

PIRACY,  generally,  328,  S.  319;  code  definition.  329,  S.  320;  robbery  of 
vessel,  338,  S.  333;  color  of  commission,  339,  S.  335;  foreign,  339,  S. 
336;  confederating  with  pirates,  340,  S.  338. 

PANDERING,  392,  S.  388 ;  395,  S.  391. 

POOR  DEFENDANTS,  witnesses,  26,  S.  8;  Process,  stealing,  etc.,  152,  S. 
107;  obstructing,  153,  S.  108. 

PRACTICE,  27,  S.  9. 

PROCEDURE,  27,  S.  9. 

PROSECUTION,  how  begun,  30,  S.  12. 

PRESENTS,  offering  to  revenue  officers,  244,  S.  211. 

REMOVAL,  32,  S.  14 ;  probable  cause,  32,  S.  14. 

RECOGNIZANCE,  32,  S.  15. 

RAPE,  assault  to.  320,  S.  305)  statute,  etc.,  321,  S,  307;  carnal  knowledge, 
girl,  322,  S,  308, 


450  INDEX 

KECORDS,  (Ifstniclidii  or  tli.-it,  etc,  of,  157,  8.  lOH;  159,  8.  110;  forgery 
of,  2U0,  8.  172. 

EE8EMBLAN('E  AND   81MIL1TUDE,  .-ouiitorf citing,   137,  8.  !»2. 

EUKAL  CAKHIER8,  ciiibi'zzk'im-iits,  iisi-,  e-tc,   J2U,  8.   73. 

1M':TUKN8,  failure  to  make,  181,  8.  144. 

KESCUE  OF  PRISONER,  IGG,  8.  IIG;  at  execution,  1G7,  8.  117;  of  jiroj)- 
erty,  248,  8.  215. 

EECEIPTING  FOK  LARGER  SUMS  THAN  PAID,  175,  8.  128. 

ROBBERY,  232,  8.  192;  324,  8.  313;  train,  in  territories,  347,  S.  354. 

RESISTING  REVENUE  OFFICER,  242,  8.  209. 

SENTENCE,  correction  of,  52,  S.  32;  53,  8.  34;  when  imposed,  53,  8.  32; 
suspension  of,  53,  S.  33;  56,  S.  35;  liar<l  labor,  407,  S.  405. 

SEVERANCE,  56,  8.  37. 

STAMPS,  unlawful  pledge  or  sale  of,  100,  S.  67;  failure  to  cancel,  11,  S. 
68;  counterfeiting,  115,  S.  71. 

STATE  officers;  62,  8.  44;   63,  8.  44. 

STOCK,  issuing  of,  105,  S.  61. 

STOLEN  PROPERTY,  receivers  of,  234,  S.  194;  allegation  of  ownership, 
234,  S.  194. 

SURVEY,  of  public  lands,  preventing,  etc.,  240,  S.  202. 

SLAVE  TRADE,  298,  S.  272;  299,  S.  273;  bringing  into  U.  S.,  300,  S. 
275;  equipping  vessel  for,  300.  8.  276  and  302,  S.  280,  and  282,  S.  303; 
transporting,  301,  8.  277 ;  hovering  on  coast,  301,  8.  278,  and  304,  S. 
285;  serving  on  vessels  engaged  in,  301,  S.  279;  carrying  away  person 
for,  etc.,  302,  S.  280;  forfeiture  of  vessel,  303,  S.  283;  303,  S.  284; 
304,  8.  286,  and  287-294;  kidnapping,  307-309. 

'steamboat   INSPECTOR,  receiving  illegal  fees,   183,  8.   150. 

SOLDIERS  AT  ELECTION,  285,  8.  253;  voters,  intimidation  by,  285,  8. 
254;  may  vote  when,  286,  8.  257. 

STATE  BANK  NOTES,  130,  S.  83. 


INDEX  451 

SEARCH  WARRANT,  for  t-ouiitt'rfcits,  142,  8.  98;  see  luttery. 

SUBORNATION  OF  PERJURY,  151,  S.  lOG. 

SEDUCTION,  322,  S.  309;  fine,  payniout  to  wlioiii,  322,  S.  310;  liniitatioii, 
etc.,  322,  S.  310. 

STOLEN  GOODS,  let-eiviug,  32o,  S.  317. 

STATE  LAWS.  ADOPTED  TO  PUNISH  WHEN  NO  FEDERAL  LAW, 
326,  S.  318;  jurisdiction  unimpaired,  400,  S.  396;  404,  S.  398. 

STATE  COURTS,  jurisdiction  uninij.aired,  400.  S.  396;  decisions,  400,  S. 
396;  illustrations,  401,  S.  397;  404,  S.  397  and  398. 

SUPREME  LAW^  21,  S.  1;  404,  S.  397  and  398. 

■•f' 

TREASON,  generally,  255,  S.  225;  statute,  256,  S.  226;  punishment,  257 
S.  227 ;  c6rrespoudence  -vvith  other  governments,  259,  S.  230 ;  recruiting, 
etc.,  against  govermnent,  260,  S.  233 ;  enlisting  to  serve  against  U.  S., 
260,  S.  233;  foreign  commissiou,  262,  S.  235. 

TRIAL  COURTS,  29,  S.  10. 

TERRITORIES,  Code,  no  conflict,  342,  S.  342 ;  obscene  literature,  abortion, 
etc.,  343,  S.  343;  polygamy,  343,  S.  344;  adultery.  345,  S.  348;  incest, 
345,  S.  349;  fornication,  346,  S.  350;  fights,  prize  and  bull,  347,  S.  352; 
train  robberies,  347,  S.  354. 

TRAIN  ROBBERIES,  ETC.,  347,  S.  354. 

THEFT,  Post-Office  property,  121,  S.  74;  of  process,  etc.,  152,  S.  107;  U.  S. 
property,  generally,  232,  S.  192  and  193;  325,  S.  316. 

TICKETS,  Lottery,  importation,  etc.,  290,  S.  263.     See  lottery, 

TIMBER  DEPREDATIONS,  235,  S.  195;  on  reservations,  237,  S.  196; 
boxing,  etc.,  238,  S.  197;  fire  and  failing  to  extinguish,  239,  S.  198; 
injuring  fences,  etc.,  239,  S.  200. 

TELEGRAPH,  injuries  to,  240,  S.  204. 

THREATENING  LETTER,  91,  S.  55. 

TEST  LETTER,  71,  S.  51. 

UNLAWFUL  POSTAGE,  collection  of,  109,  S.  67;  sale  or  pledges  of 
stamps,  109,  S.  67. 


452  INDEX 

VOTE,  false  certificate  of  eitizeusliip,  251,  S.  220;  right  to.  282;  intiini- 
datiou  of.  by  soldier,  or  sailor.  285,  S.  254;  no  qualification  by  army. 
285,  S.  255 ;  who  may  not,  286,  S.  257. 

VESSEL,  mal-treatment  of  crew,  330,  S.  321;  revolt  or  mutiny  on  board, 
331,  S.  323  and  333,  S.  324;  seamen  laying  hands  on  Commander,  334, 
S.  325;  abandonment  of  Marines  in  foreign  port,  334,  S.  326;  cast 
away  vessel.  335,  S.  327;  plundering,  etc.,  336,  S.  328;  attacking,  337, 
S.  329;  breaking  and  entering,  337,  S.  330;  owner  destroying.  337,  S. 
331;  other  persons.  338,  S.  332;  robbery  of.  338,  S.  333;  running  away 
with,  340,  S.  337;  of  U.  S.  defined.  341.  S.  341. 

VENUE,  of  conspiracy  to  commit  offences,  221,  S.  182, 

VERDICT,  impeaching  by  juror,  34,  S.  16;  attack.  47,  S.  25;  partial,  52,  S. 
31;   in  murder  case,  318.  S.  302;  qualified,  406,  S,  400. 

WAIVER  OF  JURY,  46,  S.  24. 

WRAPPER,  where  cover,  86,  S.  54, 

WEATHER  FORECASTS,  197,  S.  169;  241,  S.  205. 

W^HIPPING,  abolished,  399,  S.  395. 

WITNESS,  against  self,  25,  S.  7;  for  poor,  408,  S.  40S ;  confronted  by  an 
exception,  26,  S,  8;  conviction  of,  60.  S.  42;  intimidation  of,  161,  S. 
112;  bribery  of,  169,  S.  124;   fees,  182,  S.  147. 

WORKjMAN,  enticing  away,  231,  S.  189. 

WILFULLY,  369,  S.  373. 


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